Bail Reform
Bail & Bail Reform Overview
In 2019, the New York State Legislature enacted bail reform which limited judicial options for setting bail. The new law defined a narrow set of "qualifying offenses” under which bail could be imposed, excluding many serious crimes. Judges were mandated to use the "least restrictive means” to ensure a defendant's return to court. This often meant releasing defendants on their own recognizance or under non-monetary conditions. The reform removed the practice of judges to consider public safety risks when making bail decisions, which had caused concern that dangerous individuals could secure their release while those unable to afford bail remained incarcerated.
There were immediate impacts: incredible increases in violent crimes, and a cultural shift in criminal behavior as the lack of immediate consequences led to the perception there was little to fear from arrest. This shift raised concerns about public safety, particularly in communities disproportionately affected by violent crime.
Subsequent amendments to the bail law attempted to address some of these issues, including allowing judges to consider bail in certain circumstances, particularly for some crimes involving firearms. However, we argue the changes have not sufficiently restored balance between ensuring public safety and upholding the principles of justice.
Moving forward, we call for clearer legislation, “clean law,” that allows judges to detain repeat offenders and those deemed a danger to public safety, alongside the use of unbiased risk assessment tools to guide judicial decisions. Clean law will enable anyone to understand legal requirements.
Bail Reform
Many who pushed for bail reform sought to address genuine problems.
Addressing these problems calls for balancing legitimate concerns about justice with those over public safety.
In April 2019, the New York State Legislature passed bail reform. The new bail law, set out in Section 500 of New York’s Criminal Procedure Law, limited judicial options regarding pretrial defendants. The law set forth a few crimes for which a judge could set bail, referring to these crimes as “qualifying offenses.” The list of qualifying offenses did not include some burglaries and cases where the defendant was accused of unarmed robbery while being aided by another, as well as almost all felony drug cases. The law also prohibited judges from setting bail on most nonviolent felonies. Crimes such as grand larceny, commercial burglary, criminal contempt, stalking, selling or possessing even large amounts of narcotics on the street, manslaughter, and over 350 other crimes were all deemed “non-bailable.” Please see the following link for further information.
Even if a defendant faced charges for a qualifying offense, the judge had to use the "least restrictive means" to ensure they returned to court. Alternatives to bail include releasing the defendant on their own recognizance, setting non-monetary conditions for release, electronic monitoring of the defendant, and remanding without bail (with no direction).
Also of note, there were no standards put in place for electronic monitoring. In fact, these devices are frequently not monitored.
Now, like before, a dangerous but well-off defendant can still secure their release, and a poor defendant still might spend an extended period in pretrial detention simply because they cannot afford to make bail. The ability to pay should have no bearing on liberty and bail itself definitely does not make a defendant less dangerous.
New York’s restrictions on bail are similar to those adopted in several states. However, New York State is the only jurisdiction that doesn’t allow judges to consider a defendant’s public safety risk.
Today, local law enforcement is forced to rely on the Bureau of Alcohol and Firearms (ATF) for assistance in illegal gun arrests in order to detain dangerous individuals. This highlights the lack of clear dangerous standards in New York’s weapon possession laws. We are now forced to secure such defendants under the federal dangerous standard. So far, federal charges have resulted in the detention of over 70 dangerous individuals carrying illegal firearms in our community. This saves lives, but is an unsustainable legal practice.
Ironically, given the stated aims of bail reform, the majority of the victims of the increased violent crime in Rochester are people of color, and the recent crime wave has a disproportionate effect on their neighborhoods. It also disproportionately affects the poor, as all consumers are forced to pay the larceny inflation rate caused by retail theft, stolen catalytic converters, cars, and other property.
WHY WE CARE
“People shouldn’t be afraid to walk across the street to the store. They shouldn’t have to worry about being home before dark because they’re afraid to walk through the parking lot.”
Luvene Ford
PRESIDENT, KEELER PARK TENANTS ASSOCIATION
“Everyone is saying the same thing, ‘You’ve got to leave the city.’ I’m not giving up, it’s my city too. I’m not going to let a bunch of hoodlums throw me out.”
Gary Rogers
ROCHESTER BUSINESSMAN
Effective Date
The staggering increases in crime began before the January 1, 2020 effective date of bail reform. To avoid an onslaught of bail reviews under the new law, the state Office of Court Administration instructed judges in the fall of 2019 to re-evaluate the bail status of all defendants held, releasing those whose bail could not be set under the new law. The change resulted in over 400 inmates released from the Monroe County Jail in the last quarter of 2019.
Judges were also told they could begin implementing the law prior to its effective date.
Many Judges began doing so in October 2019.
The new law had a staggering effect, as intended, on bookings in the Monroe County Jail.
Law enforcement, prosecutors, judges, and even defense attorneys – the very people tasked with implementing bail reform – all report a cultural shift in criminality as a result. Instead of fearing any consequences of arrest, most criminals now simply shrug when caught and demand their appearance ticket. Laws create culture. Ask yourself, why do we now see 50 illegal ATVs taking over our streets? Lawlessness.
If there are no immediate consequences for committing a crime, why stop?
Read the "Downtown" Essay by Monroe County Sheriff Todd K. Baxter
WHY WE CARE
“Think about all the people who have been shot but didn’t die - spinal cord injuries, colostomies, head injuries - these people and their families are never going to be the same.”
Dr. Mark Gestring
TRAUMA SURGEON
Bail Reform Timeline
At the behest of law enforcement, there have been three adjustments to the initial 2019 bail reform. We still need clean law.
2019
Bail Reform legislation is passed. New York State limits crimes judges can set bail on and order a person held. Judges can only impose minimal restrictions, if any. Most non-violent crimes require an appearance ticket and release. There are no special circumstances when a judge can set bail. Crimes eligible for bail include mostly violent and Class A felonies (except drug charges). Limits are based on "least restrictive means, designed to ensure people aren't kept in jail simply because they can't afford to pay bail." Law enforcement agencies were required to take necessary action to ensure compliance before January 1, 2020. This resulted in approximately 400 individuals being released from the Monroe County Jail in the last quarter of 2019.
2020
Some restrictions are rolled back. More crimes are bail-eligible, and judges can impose pre-trial release conditions like mental health and drug treatments, employment, and education. Judges have some discretion over persistent felons charged with another felony, those accused of harming a person or damaging property while released on a similar charge, and probationers and parolees accused of felonies.
2022
Further legislative rollback of restrictions. Criminal possession of a weapon and criminal sale of a weapon to a minor are now bail-eligible. Theft is clarified as causing harm to a person or property; someone released on a larceny and arrested again for theft is subject to bail.
2023
Rollback of "least restrictive means" limits allows judges to "consider the kind and degree of control or restriction necessary to reasonably assure the principal's [sic] return to court and select a securing order consistent with its determination."
Reforms to the Reform
The Governor has pushed for some improvements. The New York State legislature has piecemealed corrections over several years, adding to the confusion. Keep in mind there are five other significant reforms in the criminal justice arena, bail being just one.
See the following link to illustrate the confusion, just with bail reform. This bench card (John Jay College of Criminal Justice) incorporates each round of amendments to clarify eligibility for bail, electronic monitoring, and other pretrial options.
In July 2020, the legislature implemented the first amendments. They made several changes but kept the main body of the 2019 law in place.
The 2022 amendment to the statute added that “harm in harm” includes crimes of theft or damage to property, making such offenses qualify for bail. However, the statute also states that if a theft offense is "negligible" and is not committed to further other criminal activity, then the court MUST release the individual under their own recognizance or set non-monetary conditions.
In 2023, Governor Hochul fought through the budget process to roll back "least restrictive means" wording, which was the emphasis of the bail reform law from 2019. This helped redirect the conversation.
Has Bail Reform Affected Crime?
It’s true that crime increases can be attributed to a variety of factors, including family breakdown, poverty, the impacts of COVID-19, civil unrest, and anti-police rhetoric. Additionally, criminal justice reform is, without doubt, a contributing factor.
Our focus is on justice reform while also advocating for enhancements in the other areas mentioned. Make no mistake, for some, crime is a business. Illegal activity, particularly crime involving stolen property, fuels our opioid crisis, puts cash in drug dealers’ pockets, and places illegal guns in the hands of criminals. As a result, our communities experience more violence.
The following graph depicts the results of the Monroe County Sheriff’s Office 2023 Retail Theft Details. These numbers illustrate the number of arrests made, how many appearance tickets were issued, and the number of individuals who failed to appear in court after their initial arrest and release. This catch and release policy results in additional police contacts with the offenders and an increased tax burden to the community.
For in-depth research regarding data, see Misrepresenting Data Doesn’t Make New Yorkers Safer.
Our look at violent crime related to gunplay clearly shows an incredible spike in the fall of 2019. We also show a drastic increase when comparing the nine-year average before reforms, with the four-year average since.
What We Need to Make Our Community Safer:
Authority for judges to hold those accused of crimes in custody based upon their risk to public safety and/or their proclivity to re-offend.
"In order to clean a fish, you have to catch it."
- Rev. Benjamin Cox
We appreciate the Governor's push for modifications during the budget process, however we still need comprehensive, clean, clear law that articulates the legislators' intent and allows for dangerous and repeat offenders to be held in custody when needed. This may give defendants a “cooling-off period,” enabling judges, police, and community services time to connect them and their families to an existing network of resources to redirect their behaviors.
To clearly define and guide judges in their decisions relating to custody, there are unbiased instruments such as the Public Safety Risk Assessment that are already widely utilized for this purpose.
Definitions
- Arraignment
- Bail/Bond
- Misdemeanor
- Felony
- Appearance Ticket
- Release on Recognizance (ROR) & Non-monetary Conditions
Research & References
- The New York State Division of Criminal Justice Services reports criminal justice data here.
- The Federal Bureau of Investigation (FBI) has several criminal justice data analysis tools available here. Note, the lag time in this data base.
- The Monroe County District Attorney's Office, in partnership with Measures For Justice and community advocates, maintains the Commons, a portal to access Monroe County criminal justice data.
- Data Collaborative for Justice (DCJ) at John Jay College of Criminal Justice, Bench Card: New York’s Bail Statute | Pretrial Options
- Manhattan Institute; More Criminals, More Crime: Measuring the Public Safety Impact of New York’s 2019 Bail Law Jim Quinn
Trends
