The images from early June made headlines around the world. There were people breaking through the plywood at Macy’s Herald Square late at night, and a video of men hopping out of a Rolls Royce in SoHo to grab boxes of goods. Luxury brands like Chanel and Gucci in Manhattan were targeted alongside smaller retailers in the Bronx.

Hundreds of people were arrested for breaking into stores in New York City as demonstrators were protesting the police killing of George Floyd in Minneapolis and racism. Under the state's new bail law, which went into effect in January, the vast majority of them were released on their own recognizance. And that's led to another round of debate about the bail laws.

There is no crime on the books called looting. The offenses that occurred during the protests are technically different levels of commercial burglary. In addition, many feel the word looting has racist connotations because it's often used when Black and brown people take property but not whites.

The Manhattan District Attorney’s office said it charged almost 400 people with burglary in late May-early June (about six times as many as the previous week), which includes other cases besides the stores. About 85 defendants were charged with vandalism and burglary in the Bronx from June 1. Only four were charged in Brooklyn. The Queens DA’s office did not respond to requests for information by Gothamist/WNYC and there were no arrests in Staten Island.

Prior to January, judges could hold a person charged with burglary on bail if they thought they had a risk of flight based on their history. That’s not possible under the new bail law unless the suspect is accused of assaulting someone or has a weapon during an alleged burglary.

Earlier this month, Manhattan DA Cy Vance told CBS New York he thought Governor Andrew Cuomo should issue an executive order that makes it possible to hold those accused of commercial burglary on bail. Cuomo then suggested prosecutors already had the power to charge looters with serious offenses that are eligible for bail if they used a rock or brick, for example.

But prosecutors disagree. David Hoovler, the DA for Orange County and president of the District Attorneys Association of the State of New York cited the governor’s brick example.

“They were saying, ‘well, they used a brick and the brick was being used as a weapon,’” he explained. “Well no, really the brick was being used as a burglar's tool, it was being used to facilitate the break-in. Not really as a weapon. It was being used to break the window.”

This is why prosecutors say the current law makes it too difficult to hold someone accused of looting on bail. Based on information provided by the Manhattan DA, Gothamist/WNYC counted only four cases in Manhattan from late May and early June when judges set bail amounts ranging from $7500 to $1500 in cash (and more on bond) for defendants accused of stealing, because they’re also accused of assaulting police officers. One took place at a watch store in SoHo and two were at a Zara clothing store in Lower Manhattan. The Bronx DA said judges set bail on two people who allegedly had guns on them.

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Last week, eight elected officials from Manhattan plus Public Advocate Jumaane Williams sent a letter to Vance saying they were “extraordinarily concerned” with his efforts “to request bail on New Yorkers who are arrested in connection with the recent protests across the city.” They noted that the jails are now a hotspot for COVID-19.

Vance wrote back that he had declined to prosecute anyone arrested for unlawful assembly or disorderly conduct during the protests over George Floyd’s killing. He said the politicians were “conflating the very serious assault and burglary cases with all of the arrests that were executed during the course of largely peaceful demonstrations or after curfew.” He also encouraged anyone with evidence of excessive force by police to share that with his office.

Vance declined to be interviewed by Gothamist/WNYC. However, his spokesman said Vance’s main objection with the bail law is that it doesn’t give judges enough discretion. He said this position is shared by his fellow New York City prosecutors (in op-eds here and here) and the state’s district attorneys association.

But that didn’t satisfy Manhattan Assemblyman Dan Quart, who signed onto the letter from elected officials. The judicial discretion called for by DAs and many politicians, is “basically giving the district attorneys incredible powers to lock up people pretrial,” Quart said.

New York’s law requires that bail be set only on those at risk of not returning to court. There is no consideration for danger, as in most states. Opponents of the danger standard argue it can disproportionately impact people of color.

Defense attorneys say the current system is working as it’s intended. Sergio De La Pava, legal director for New York County Defender Services, said his organization is representing about 30 people accused of stealing during the time of the protests. He said most are in their early 20s and are people of color from New York City. He’s wary that some innocent protesters could have been swept up in the chaos, noting the language in some of the arrests.

“A lot of them don't say ‘police officer observed individual X break a window,’” he explained. “It says ‘police officer observes individual X in the vicinity of a broken window,’ maybe holding a pair of sneakers.”

He also accused Vance and other prosecutors of using the publicity over looting to re-litigate the bail law during “a real reckoning that the country is coming through with protests.”

Supporters of New York’s bail reform say the law was changed for a good reason. People charged with the same crimes had vastly different outcomes, depending on their wealth. Those who could afford to pay bail walked free while others remained behind bars—disproportionately punishing people of color before they’ve been convicted of any offense.

The law currently prohibits bail on all misdemeanors and nonviolent felonies, which is about 90 percent of all offenses in New York City. But there was a backlash as soon as it went into effect. There was an uproar around defendants who were re-arrested after release. Some had a history of mental illness while others had long rap sheets that could not be considered by judges.

In April, state lawmakers made changes. Starting in July, judges will be allowed to set bail on a larger number of offenses. That list still doesn’t include commercial burglary, or burglary in the third degree. But bail could be set on a defendant accused of burglary in the second degree, which includes entering a home. The minimum sentence for this violent felony is three and a half years in prison. Many prosecutors and lawmakers said it was wrong to include burglary in the second degree among the offenses no longer eligible for bail in January. Further changes to the law are not expected this year.

Some business owners whose stores were broken into have aligned themselves with the protesters calling for police reform. In SoHo, Selima Optique painted messages on plywood in solidarity with the Black Lives Matter movement. But Jessica Betancourt, who owns Bronx Optical Center on Burnside Avenue, is deeply stung by those who broke her windows, took $150,000 in merchandise and equipment and are now allowed to go free after being arrested.

“It doesn't make any sense because it's giving them opportunity to continue while they're waiting on trial.”

Betancourt claimed police officers didn’t do enough to stop the looting that night, when she drove to the scene and asked for help to get the safe out of her store. She also said thieves probably felt free to plunder local businesses knowing they couldn’t be held on bail.

Burglary is a felony, and under the new bail law, a defendant accused of a felony can have bail set if they’re rearrested while awaiting trial.

Beth Fertig is a senior reporter covering immigration, courts, and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.