On Wednesday, New York joined a growing number of states that have restricted the money bail system to limit the number of people who are in jail solely because they can’t afford to pay their way out. While not as sweeping as some other states’ reforms, the new law automatically releases people charged with most misdemeanors and nonviolent felonies without making them post cash bail.
Prior to the passage of the law, low-level defendants were routinely held in jail simply because they could not afford bail, not because their release posed a risk to society. This reflexive use of money bail tore families apart, ruined lives, wasted millions of taxpayer dollars, and ultimately made New Yorkers less safe.
But if you’ve been reading the news lately, you’d think New York is about to release thousands of dangerous offenders onto the streets. Prosecutors and police officials have launched a full media offensive to warn that bail reform goes too far. Bail bondsmen, who have a financial stake in the status quo, are telling reporters the new law is emboldening criminals. And in the week before the law kicked in, the New York Post ran a series of articles with provocative headlines like, “Bail Reform Is Setting Suspects Free After String of Anti-Semitic Attacks.” The articles showcased several people who were released without having to pay bail, one of whom was arrested again for punching someone the next day. The Post suggested this would be the new normal under bail reform—even though the law hadn’t yet gone into effect, the only person accused of a violent crime was jailed pretrial, and prosecutors did not request money bail in any of the other cases.
Any reform that means locking fewer people up inevitably inspires a punitive backlash and concerns about public safety. But the bail reform law may actually make New York safer.
Just look at New Jersey, which went further than New York and eliminated cash bail for all offenses in 2017. The state has seen a steep decrease in violent crime rates from 2014 to 2018. A study also found that, despite similar fears about lawlessness, the rate of alleged new criminal activity for individuals released pretrial under New Jersey’s law was virtually the same as the rate for defendants under the old cash bail system.
On the other hand, studies have shown that rather than advancing public safety, pretrial incarceration is more likely to cause crime. One study found that low-risk defendants held just two or three days pretrial were roughly 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours. The correlation grew the longer people were held: Those jailed for more than a month were 74 percent more likely to offend than those who were released within 24 hours.
Why does incarceration have this effect? People held in jail while awaiting trial start to lose ground even after just a few days of incarceration: They may lose their jobs, fail to make rent, or have their children taken away. Maintaining stability and community ties are crucial to keep people from falling back into the cycle of arrest and incarceration.
The new law changes nothing for the most serious cases: Judges may still require a bail payment to release people accused of most violent felonies, all sex-related charges, and some domestic violence offenses. These offenses currently represent 10 percent of cases handled in the state criminal justice system, according to analysis provided by the Vera Institute of Justice. Unfortunately, this still means that where bail is set the system still gives an advantage to the well-to-do. They can await trial back at their homes and jobs, while the poor languish in jail.
The remaining 90 percent of cases that come through the criminal justice system each year are misdemeanors and nonviolent felonies. In most of these cases, defendants will be released without having to pay cash bail before their trials. If someone truly poses a danger or a flight risk, judges can still set restrictions on their release, like supervision or electronic monitoring.
This is hardly the “sky is falling” scenario that the law’s opponents are trying to sell in the media. But playing on people’s fears about crime is a tried and true political tactic. Some lawmakers are already promising to campaign against the law, while others are pressuring Gov. Andrew Cuomo to roll back the “soft-on-crime” reforms. Still, the data behind releasing defendants accused of nonviolent offenses is strong, and in fact, holding them in jail pretrial raises serious public safety concerns.
And the cost of the former status quo should not be dismissed. The old system led to the incarceration of thousands of poor, low-risk New Yorkers—all legally presumed innocent—until their cases were resolved, which could take months or years. A 2016 analysis in New York City showed that 43 percent of those charged with misdemeanors remained in jail until the end of their case, including 40 percent whose bail was set at $500 or less. Research has shown that defendants detained for the entire pretrial period are more likely to be sentenced to jail or prison and for longer periods of time compared with defendants who are released to fight their cases from outside jail.
New York’s law isn’t perfect—money bail has not been completely eliminated, and some localities will need to commit more resources to bolster pretrial infrastructure. But it is a welcome first step toward making New York’s pretrial system one that relies on facts instead of fear. While there will be continued attempts to undermine the new law, a few sensational news stories shouldn’t undermine a smart reform that is long overdue.
The authors of this article work for organizations in the New Yorkers United for Justice coalition, a bipartisan group that advocated for bail reform.