Just six months ago, New York state eliminated cash bail for almost all offenses except violent felonies. But there was an immediate backlash after the NYPD claimed the crime rate was going up. There were also constant media reports about cases in which people were re-arrested after being released without bail, notably one involving a woman who punched Orthodox Jewish women in Brooklyn.
District attorneys and police unions lobbied hard to roll back the bail reforms. In April, legislators took action so judges can hold more people on bail. Those changes didn't get much attention at the time when most people were focused on the deadly coronavirus pandemic. But they're taking effect on July 2nd—just as the conversation has shifted to racism in law enforcement, after weeks of protests over the police killing of George Floyd in Minneapolis.
Listen to Beth Fertig explain the changes to bail reform with Jami Floyd on WNYC:
More Criminal Charges Eligible For Bail
The original reform was criticized by police and prosecutors because crimes classified as violent felonies were still eligible for bail, while other crimes of violence were not.
For example, burglary in the second degree wasn’t eligible even though it can involve someone breaking into a home. There was also outrage after a drunk driver on Long Island fatally struck someone and was released without bail, and after an upstate man was released after killing a woman.
The new law pointedly addresses those cases. About 25 types of crimes are now eligible for bail that weren’t in January. They include second degree burglary and any crime that results in someone’s death.
Another fix was made to address complaints by prosecutors that the definition of a major drug trafficker was too narrow. Six defendants were released without bail in January after a $7 million drug bust in the Bronx. With the new change, the city’s Special Narcotics Prosecutor Bridget Brennan says it’s possible to seek bail on someone arrested for criminal possession of a narcotic, which she said translates to at least 8 ounces of heroin or fentanyl, or for selling a certain amount.
“I think there are plenty of people who thought that that was a miscarriage of justice, especially in our overdose investigations,” she said. “When people whose product was connected to an overdose death were simply released with no restrictions whatsoever.”
But defense attorneys claim the changes were solely made in reaction to specific cases that made headlines, without any unifying principle. They also claim there were other tools for keeping accused drug dealers off the streets like electronic monitoring, which took a while to go into effect in New York City.
Categories Eligible For Bail
In addition to adding specific offenses to the list of crimes eligible for bail, the legislature made it possible for judges to set bail on categories of defendants.
Someone who commits a felony while on probation or parole can no longer be released automatically. The same goes for someone with at least two prior felony convictions who is arrested for a new felony. Scott Levy, chief policy counsel for Bronx Defenders, said that’s overly punitive.
“What this really does is penalize and punish people for things that may be many, many, many years in their past,” he explained, “and allow incarceration of people who have not yet been proven guilty of anything.”
Defenders also worry about language that allows a judge to set bail on someone arrested for a felony, “where harm occurred to an identifiable person or property while out on a separate felony or Class A misdemeanor where harm occurred to an identifiable person or property.”
Levy said that clunky sentence is extremely broad because there’s no definition of “harm.” He said it could potentially include shoplifting or vandalism, and predicted vigorous arguments at arraignments whenever someone is rearrested.
Sandra Doorley, president of the District Attorneys Association of New York, agreed this is a confusing category. But she suggested it was created to give judges more discretion.
“The original bail reform did strip judges of a lot of discretion,” she said. “Now, some of that has been given back and it's going to be up to us, each individual D.A. and assistant D.A. that appears in court, to make the arguments for each particular case.”
Prosecutors and police did not get what they really wanted: allowing judges to set bail based on whether a defendant poses a danger to the community. That’s the law in most other states. But, in New York, judges can only set bail based on a defendant’s risk of flight because the sole purpose of bail is to ensure a defendant comes back to court.
What Will The Impact Be?
The Center for Court Innovation analyzed the new legislation in April and predicted it would increase the city’s jail population by 16 percent based on the roughly 3,000 pre-trial defendants in Rikers as of March. That was before the COVID-19 pandemic slowed some crimes and also resulted in the release of many more inmates. But CCI acknowledged there wasn’t enough time to really study the impact of the January law.
Still, Levy, of Bronx Defenders, said he's sure the new rollback will send more people to jail.
“It will absolutely make it more difficult to close Rikers Island,” he said, referring to the city’s plan to reduce its jail population. “It will lead to greater incarceration. It will lead to greater racial disparities. More Black and brown people will go to jail because of these rollbacks. And I think that there is no way around that.”
Supporters of the bail reform also worry about the rollback’s timing during the ongoing pandemic. “This does nothing to protect public health or public safety and instead exacerbates our incarceration crisis at a time when evidence suggests we should be jailing far fewer people.,” said FWD.us Senior Associate for Criminal Justice Reform Rodney Holcombe.
Meanwhile, NYPD believes the amendments to the bail law don’t go far enough.
“While there are slight improvements, the changes to the criminal justice system have driven recidivism and caused more New Yorkers to be victimized,” said Chief Michael LiPetri.
“Further reform is necessary, particularly for robbery offenders, burglaries of commercial establishments and grand larceny auto — where perpetrators continue to walk out of a station house hours after stealing a vehicle. These offenders are helping to drive crime increases in New York City,”
The NYPD argued that a 22.5 percent increase in crime in February was attributable to the new bail law, though defense attorneys said there wasn’t enough evidence to prove causation.
There are also many defendants who stayed out of trouble after being released. Guy, a 26-year old Bronx resident who didn’t want Gothamist/WNYC to use his real name, to protect his identity, described his elation at being released from Rikers. He spent more than two months in jail because he couldn’t afford $5,000 cash bail after being arrested on several charges including robbery, grand larceny, and assault. Those charges were no longer eligible for bail when the law changed in January, and he was let out early in December.
“I got to come home December 20th and my daughter was born December 22,” he said. “I mean, it was really beneficial to me and it was a great blessing and I look at it as it was inspiring for me to keep doing the right thing and not look back.”
With the national spotlight on race and criminal justice reforms, those disappointed by the rollback to bail reform are setting their sights on other changes—like repealing the “walking while trans” loitering law—that can reduce the jail population, and benefit people of color who are disproportionately affected.
“We still have an obligation to people in the criminal justice system,” said Bronx State Senator Gustavo Rivera, lead sponsor of the Fair and Timely Parole Act, referring to different pieces of legislation. “All of these bills need to pass this year. We knew we needed them before and now we need them more than ever.”