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New York’s New Bail Reform Model

The next wave of bail reform goes beyond ending money bail

Building on a movement that has reached both coasts and middle America, more jurisdictions are taking a serious look at the built-in bias of money bail and its disproportionate impact on people of color and people who are poor.

America’s jails are filled with people who have not been convicted of a crime: while awaiting trial, hundreds of thousands sit behind bars, sometimes for years, simply because they cannot afford to pay their bail—while those who have money can buy their liberty.In 2017, the most recent year for which data is available from the Bureau of Justice Statistics (BJS), approximately 482,000 people, constituting 65 percent of the daily U.S. jail population, were being held pretrial on any given day. Zhen Zeng, Jail Inmates in 2017 (Washington, DC: BJS, 2019), https://perma.cc/G95M-5SF7. Although there is no nationally collected data on how many people are unable to afford bail, a 2019 survey of people held in the Cook County (Chicago) jail found that 48 percent of those incarcerated pretrial could not afford bail or lacked a residence at which they could be electronically monitored. Darcel Rockett, “Poor People Often Can’t Afford to Pay Bail—Even When They’re Innocent. An App Developed in Chicago Offers Help Using Your Spare Change,” Chicago Tribune, March 7, 2019, https://www.chicagotribune.com/lifestyles/ct-life-appolition-making-bail-20190124-story.html.Studies have shown that even spending a few days in jail can have tremendous consequences on a person’s life, including loss of employment or housing and pressure to plead guilty.Léon Digard and Elizabeth Swavola, Justice Denied: The Harmful and Lasting Effects of Pretrial Detention (New York: Vera Institute of Justice, 2019), https://perma.cc/Y96D-7977.

For years, the rallying cry of bail reform was to end money bail.See for example Color of Change, “No Money Bail,” https://nomoneybail.org/.Yet 2019 was the year it became clear that eliminating money alone, without other measures to decarcerate, will not deliver meaningful bail reform.Robin Steinberg, “Letters to the Editor: SB 10 is the Wrong Replacement For California’s Unjust Money Bail System,” Los Angeles Times, December 22, 2019, https://www.latimes.com/opinion/story/2019-12-22/money-bail-reform-california-sb10.

Take the examples of California and New Jersey, two states that were widely heralded in mainstream criminal justice circles for passing comprehensive bail reform in recent years. In 2018, California became the first jurisdiction to pass a law—Senate Bill 10—that ended money bail entirely.California SB 10 (2018), https://perma.cc/6ZEJ-8FFB. See also Vanessa Romo, “California Becomes First State to End Cash Bail After 40-Year Fight,” National Public Radio (NPR), August 28, 2018, https://perma.cc/4YRS-ZWGC.On its face, this should have been a victory in a state where bail amounts are some of the highest in the country, and thousands remain behind bars simply because they cannot afford bail.John Raphling, Not In It For Justice (New York: Human Rights Watch, 2017), https://perma.cc/29D6-TY3J.But the fundamental flaw of SB 10 was that it replaced the current practice of unfettered discretion to impose unaffordable bail amounts with something potentially worse—unfettered discretion to indefinitely detain people pretrial.Eric Westervelt, “California's Bail Overhaul May Do More Harm Than Good, Reformers Say,” NPR, October 2, 2018, https://perma.cc/8NLW-FYNT.Many bail reform advocates who initially supported SB 10 rescinded their support at the eleventh hour.See for example Laurel Eckhouse, “California Abolished Money Bail. Here’s Why Bail Opponents Aren’t Happy,” Washington Post, August 31, 2018, https://www.washingtonpost.com/news/monkey-cage/wp/2018/08/31/california-abolished-money-bail-heres-why-bail-opponents-arent-happy/?noredirect=on&utm_term=.6f492b32df63; and Abbie VanSickle, “So Much for the Great California Bail Celebration,” The Marshall Project, August 30, 2018, https://perma.cc/FA87-5RMG. For specific criticisms, see Human Rights Watch, “Human Rights Watch Opposes California Senate Bill 10, the California Bail Reform Act,” August 14, 2018, https://perma.cc/WPT4-5CLT; Essie Justice Group, “Essie Justice Group Withdraws Support for SB 10,” August 14, 2018, https://perma.cc/64WH-ULUA; and Silicon Valley De-Bug, “Silicon Valley De-Bug's Letter of Opposition to California's False Bail Reform Bill (SB10),” August 14, 2018, https://perma.cc/956N-5CY6.More predictably, the for-profit bail bond industry in California also opposed bail reform, launching a campaign both to enshrine the “right to money bail” in the California Constitution and to repeal SB 10.Maria Dinzeo, “Bail Industry Mounts Two-Pronged Attack to Revive Money Bail in California,” Courthouse News, August 9, 2019, https://perma.cc/4YBN-Z2DH.SB 10 is now on hold pending a statewide referendum in November 2020 after the bail bond industry successfully gathered more than half a million signatures against the new law.Michael McGough, “The Fate of California’s Cash Bail Industry Will Now Be Decided on the 2020 Ballot,” Sacramento Bee, January 17, 2019, https://www.sacbee.com/news/california/article224682595.html.

On the other side of the country, New Jersey, which enacted bail reform in 2017, released a study in April finding that although release rates increased and the overall pretrial jail population dropped by 30.8 percent after implementation, racial disparities remained as pronounced and disproportionate as before bail reform was passed.Glenn Grant, Jan. 1 – Dec. 31 2018 Report to the Governor and the Legislature (Trenton, NJ: New Jersey Administrative Office of the Courts, 2019), 46, https://perma.cc/U5SS-8T65.Troublingly, the majority of people released under New Jersey’s new bail scheme were subject to onerous pretrial conditions—only 9 percent of people arrested in New Jersey in the first three quarters of 2019 were released on their own recognizance, while 27 percent were subject to weekly phone and in-person supervision, and 6 percent to electronic monitoring or home confinement.For the proportions of people released under various pretrial conditions, see New Jersey Administrative Office of the Courts, Criminal Justice Reform Report: 2019, Chart A (Trenton, NJ: New Jersey Administrative Office of the Courts, 2019), https://perma.cc/XS6Y-6EBL. For a description of the conditions of pretrial release, see New Jersey Administrative Office of the Courts, Pretrial Release Recommendation Decision Making Framework (DMF) (Trenton, NJ: New Jersey Administrative Office of the Courts, 2018), 3, https://perma.cc/Q92C-C7XD.

The challenge for other jurisdictions was to take the wins from California and New Jersey and learn from the mistakes. In April, New York became the most recent state to pass comprehensive bail reform.Dan M. Clark, “Cuomo, Lawmakers Announce Deal on State Budget, Criminal Justice Reforms,” New York Law Journal, March 31, 2019, https://perma.cc/9VMA-X7W4.Compared to California or New Jersey, New York’s new bail law received relatively little media coverage. To many interested in bail and pretrial justice, New York’s efforts at reform seemed un-newsworthy as the bill didn’t go as far as originally promised to eliminate money bail entirely.Insha Rahman, New York, New York: Highlights of the 2019 Bail Reform Law (New York: Vera Institute of Justice, 2019), https://perma.cc/C9MB-CRX9.(An earlier bill would have eliminated money bail entirely and allowed judges to impose preventive detention–remand with no bail—in some serious cases, but that version did not pass.)Ibid.

Yet New York’s bail reform law has the potential to be groundbreaking and truly transformative. The law, which went into effect in January 2020, eliminates money bail and mandates release for most misdemeanors and nonviolent felonies—which together make up about 90 percent of all arrests statewide—although judges may order pretrial supervision or electronic monitoring in some cases. Money bail and pretrial detention are reserved for serious cases, including some domestic violence offenses and violent felonies. And if judges do set bail, they must consider a person’s ability to pay.

The New York law promises to have a significant effect on mass incarceration: some estimate that the state could see a 40 percent reduction in its pretrial jail population.Ibid.And although the law does not fully eliminate money bail, it goes a step further than other reform bills by mandating, not just presuming, pretrial release for most arrests and requiring judges to consider ability to pay in the limited number of cases where bail is still imposed.

As with bail reform efforts in other states, there has been vocal opposition to New York’s plan—particularly from law enforcement and the District Attorneys Association of the State of New York.See for example Jeff Coltin, “DAs Trained How to Keep People in Jail Despite New Bail Law,” City & State New York, October 28, 2019, https://perma.cc/27S3-XFQK; and James O’Neill, “One Dangerous Bail Reform Law: The Legislature Must Fix Mistakes That Will Make New York City Neighborhoods More Vulnerable to Crime (Opinion),” Daily News, May 28, 2019, https://www.nydailynews.com/opinion/ny-oped-one-dangerous-bail-reform-law-20190528-be3kgkxaqnaeleat665bdyw3lq-story.html. O’Neill resigned as police commissioner of the NYPD effective December 1, 2019. Brynn Gingras, Shimon Prokupecz, and Eric Levenson, “NYPD Commissioner James O’Neill is Resigning After 3-Year Tenure,” CNN, November 4, 2019, https://perma.cc/XNM9-N8YT.Opponents argue that those facing charges will have no incentive to appear before the court if bail is removed from the equation; they also warn of threats to public safety if incarcerated people are released en masse. As the law rolled out in January 2020 that opposition grew louder, with law enforcement and prosecutors demanding rollbacks and claiming that people who would otherwise have been incarcerated were out committing crimes—even though New York did not have a preventive detention provision prior to the new law and the primary determinant of whether a person was held pretrial was the ability, or inability, to pay bail.Emily Bazelon and Insha Rahman, “There’s a Strong Case for Sticking With Bail Reform,” New York Times, January 24, 2020, https://www.nytimes.com/2020/01/24/opinion/sunday/bail-reform-new-york.html.But criminal justice reform advocates say that the evidence does not support those fears—numerous studies, including New York City’s own data, have shown that people return to court at high rates even without any financial stake in their cases.Ethan Corey and Puck Lo, “The ‘Failure to Appear’ Fallacy,” The Appeal, January 9, 2019, https://perma.cc/98FX-92PL. Also see for example New York City Mayor’s Office of Criminal Justice (NYC MOCJ), Supervised Release Quarterly Scorecard January-March 2019 (New York: NYC MOCJ, 2019), https://perma.cc/E4UZ-BQ28.And the real effects of the new bail reform law are already being felt in rural counties like Herkimer and Onondaga, where the number of people in jail has dropped dramatically, with no uptick in crime.Bazelon and Rahman, “There’s a Strong Case for Sticking with Bail Reform,” 2020.

Change is happening at the local level as well. In March, the Pennsylvania ACLU filed a suit against six Philadelphia arraignment court magistrates arguing that the city’s bail system is broken and that money bail is often imposed on indigent people without considering their ability to pay.Philadelphia Community Bail Fund v. Bernard, No. 21 EM 2019 (Penn. March 12, 2019) (Complaint), https://perma.cc/9T88-ES3T.(In July, the Pennsylvania Supreme Court began a special inquiry into the money bail practices of the First District.Philadelphia Community Bail Fund v. Bernard, No. 21 EM 2019 (Penn. July 8, 2019) (Order Regarding Application for Extraordinary Relief), https://perma.cc/37UA-LNMS.) In Texas, a federal judge ruled that Galveston County must provide counsel at bail hearings.Booth v. Galveston County, No. 3:18-CV-00104 (S.D. Tex. August 7, 2019) (Memorandum and Recommendation), https://perma.cc/PET6-243M; and Booth v. Galveston County, No. 3:18-CV-00104 (S.D. Tex. September 11, 2019) (Order Adopting Magistrate Judge’s Memorandum and Recommendation & Preliminary Injunction), https://perma.cc/E286-6GTC.And Cook County (Chicago), Illinois, announced that major bail reforms enacted in the county led to a 15 percent drop in the jail population and an overall decline in violent crime.Shannon Heffernan, “Report: Cook County Bail Reform Reduced Jail Population Without More Crime,” NPR, May 13, 2019, https://perma.cc/M66F-Q3FY.

One of the most significant bail reforms of 2019 has emerged out of Harris County (Houston), Texas—the state’s most populous county—after a lawsuit was filed in 2016 by people detained in the Harris County jail on misdemeanor charges because they could not afford bail.Jolie McCullough, “Harris County Agreed to Reform Bail Practices That Keep Poor People in Jail. Will It Influence Other Texas Counties?” Texas Tribune, July 31, 2019, https://perma.cc/55W2-4XM6.After the county’s misdemeanor bail system was ruled unconstitutional by a federal judge, the Harris County Criminal Courts at Law approved a landmark settlement proposal—Rule 9.1—that requires mandatory release of close to 85 percent of people arrested on misdemeanor charges in the county.Alvaro Ortiz, “Federal Judge Approves Settlement Over Historic Lawsuit on Harris County Bail System,” Houston Public Media, September 5, 2019, https://perma.cc/G4T3-6U36.For those still subject to money bail under the settlement, judges must first consider nonmonetary conditions of release and, if bail is set, a person’s ability to pay.Harris County Criminal Lawyers Association, Amended Local Rule 9.1 (Misd Bail Policies), https://perma.cc/YR8M-TWSE.Rule 9.1 further requires counsel at bail hearings, access to social workers, and supportive services such as court reminders and assistance getting to court.Ibid.The settlement also provides for an “open-hours court” to be held once a week, where those who miss their hearings can return to court and clear up any warrants.Ibid.The settlement has the potential to serve as a model—both in Texas and across the country—for moving away from money bail and embracing other decarcerative reforms—such as provisions for mandatory release and supportive, not punitive, pretrial services—that bail reformers have sought in addition to ending money bail.

These reforms in Harris County have engendered strong opposition by many, including those who originally were supportive of changes to the current bail system. During the litigation that led to Rule 9.1, Harris County District Attorney Kim Ogg publicly voiced her support for misdemeanor bail reform and called it “necessary and long overdue.”Office of District Attorney Kim Ogg, “Bail Reform: Position on Bail Bond Litigation,” press release (Houston, TX: Office of the Harris County District Attorney, March 3, 2017), https://perma.cc/G2KE-HMU7.Yet the district attorney, with many members of local law enforcement agencies, protested the final version of the new misdemeanor bail rule at a hearing held by the federal judge in the case in October.Gabrielle Banks, “District Attorney Kim Ogg Summons Police Chiefs to Oppose Historic Bail Settlement,” Houston Chronicle, October 12, 2019, https://www.houstonchronicle.com/news/houston-texas/houston/article/District-Attorney-Kim-Ogg-summons-police-chiefs-14517578.php.At the hearing, more than 100 stakeholders—11 of whom gave testimony—filled the courtroom and, although Ogg declined the opportunity to speak, her office filed a brief raising concerns about the settlement and told reporters she was concerned about public safety because “[i]n practice, we’re seeing repeat offenders being released on PR (personal recognizance) bonds repeatedly.”Gabrielle Banks, “AG’s Office, Police and County Officials Voice Concerns About Bail Plan at Final Hearing,” Houston Chronicle, October 28, 2019, https://www.houstonchronicle.com/news/houston-texas/houston/article/AG-s-office-police-and-county-officials-voice-14568648.php.After hearing the opposition, the federal judge still ruled to recognize Rule 9.1 in November, clearing the final hurdle for this historic settlement to take effect.Gabrielle Banks, “Federal Judge Gives Final Approval to Harris County Bail Deal,” Houston Chronicle, November 21, 2019, https://www.houstonchronicle.com/news/houston-texas/houston/article/Federal-judge-approves-Harris-County-bail-deal-14853781.php.

Research and statistics show that the reactionary arguments against bail reform used in Harris County—just like those in New York—have not proven to be accurate. In 2019, New Jersey released a report showing that people released as a result of the state’s bail reform are no more likely to commit new offenses or fail to show up for court appearances than people released under the prior system of money bail.Glenn Grant, 2018 Report to the Governor and the Legislature (Trenton, NJ: New Jersey Administrative Office of the Courts, 2019), 3, https://perma.cc/MD64-Q55V.An independent study found that Philadelphia’s efforts at bail reform led to a 23 percent increase in the number of people released with no compromises to court appearance, pretrial arrest, or crime.Aurelie Ouss and Megan Stevenson, “Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail,” George Mason Legal Studies Research Paper no. LS 19-08 (February 17, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3335138.Finally, New York City consistently has had the lowest jail incarceration rate of any major U.S. city—as a result of local changes in bail practices enacted even before the new bail reform law passed this year—and continues to enjoy historically low rates of crime.See NYC MOCJ, Jail: Who is in on Bail? (New York: NYC MOCJ, 2019), https://perma.cc/7LU2-G4WE; and New York City Police Department, “Historical New York City Crime Data,” https://perma.cc/QB6P-MT2H.