Checking in on Bail Reform
New York was one of the first states to reform its cash bail laws. Now it’s ending those reforms prematurely.
Every morning, when I first wake up, the first thing I read on my iPhone is the online app for the New York Post — a tabloid in New York City which also happens to be the oldest newspaper in the country. Without fail, every day there seems to be a story about a violent crime committed in New York City by a perpetrator who had been released without bail by some bleeding heart judge. The Post complains bitterly, “How could this bad actor with a long rap sheet and a history of violent crime not be held by the court for the alleged crime for which they were released?”
Bail has been part of our Anglo American jurisprudence since the Magna Carta. It is specifically provided for in the Eighth Amendment to the Constitution, warning us that excessive bail shall not be assessed. The Founders cared about bail, because the opposite of bail is incarceration — the deprivation of one’s liberty — probably the most powerful and serious power that government has to deprive us of our liberty against our consent.
Bail is a core concept which affects the liberty of all citizens of the country. It is worth understanding under what circumstances one can be deprived of liberty, since the decision on bail occurs early in the criminal justice process, before anyone has been convicted of anything. They are suspected of doing something. There may have been witnesses. There may not be any real doubt on an objective basis, but conviction still requires due process.
There is great agreement between libertarians and those of the progressive left in our country on our view of bail. America’s high prison incarceration rates are known around the world — an embarrassment for an alleged beacon of liberty. Yet few realize that we have another problem associated with our jails. Those charged with a crime are supposed to be innocent until proven guilty, but our bail system disproportionately punishes the poor and reverses the formula — making them guilty until proven innocent.
I previously covered the civil liberties issues associated with cash bail back in 2018, and the wave of states was starting to test out alternatives. Since then, New York has joined that wave — eliminating their bail system for pre-trial offenders who are not deemed high risk. This is great news: other states have proven that it works to reduce jail populations and ensure that people who do not belong behind bars are released prior to trial.
But just when I thought it was time to celebrate, Reason Magazine’s Joe Lancaster informs me that these reforms are in jeopardy. New York Governor Kathy Hochul is working behind the scenes to roll back the reforms — expanding the number of crimes eligible for bail, against the findings of a new report that shows the change in the law is working as intended.
Joe Lancaster, an assistant editor at Reason, joined me to break down the findings of the report.
What was going on that got your attention in New York City?
Back in mid-2019, the state legislature in New York, which is pretty solidly controlled by Democrats, implemented reforms to the cash bail system. When you are accused of a crime, you go before a judge, who decides whether or not you’re allowed to leave before your trial, or have to stay in prison. You have to fork over some amount of money to essentially incentivize you to come back from trial — some skin in the game. But if somebody can’t afford bail, they may end up spending weeks, months or longer in jail, awaiting the trial. This falls on people with lower incomes.
The reform in New York, which was to take effect January 1, 2020 would preclude a lot of charges — including nearly all misdemeanors and nonviolent felonies — from falling under the bail system. It was not even in the judge’s hands to give you an amount for bail. You were just released.
Around that time, there was a series of anti-Semitic attacks that got people riled up, followed by COVID lockdowns, racial justice protests in major cities, and in the midst of this, violent crime rising all across the country — including New York City.
So within months of New York’s bail reform going into effect, the administration was pressured to defy the reforms a little bit. So it did expand some of the crimes where bail could be applied.
People drew the conclusion that recidivism was a contributing factor to the rise in violent crime — that people who would have been subjected to higher bail requirements would have remained in jail and not committed other crimes. Being “tough on crime” is a great way to run a successful political campaign, and the concept of preventive detention has been invoked here. Should we be allowed to keep people in prison just because they are more likely to commit another crime?
This is one of the stickier parts, because the stated purpose of bail doesn’t have anything to do with whether or not someone reoffends. In fact, in the New York law, it specifically left out the consideration of whether or not someone was likely to offend while they were out on bail. The judge is instructed to take into account someone’s ability to pay bail if they were assigning it, but it at no point did it specify whether to consider the likelihood to reoffend.
“The data shows that a decline in the instances of pretrial detention has not resulted in any sort of uptick in people reoffending after getting out on bail in New York City.”
Bail is handled on the state and local level — not mandated from the top down — and there’s good reason for that. It puts more emphasis on individual cases. In some cases judges are able to take someone’s prior convictions into account. This element of “pre-crime” a la Minority Report makes me feel a little bit uncomfortable. In the past few days, New York’s Governor Kathy Hochul has further undone the reforms. Not only did they make more changes to which crimes are eligible for bail, they’ve now expanded it so that judges can consider things like past gun use, past instances of violence, etc., in whether or not to assign bail.
There was a report by the NYC Comptroller looking at data from 2018, 2020, 2021 — from a year before the reforms went into effect to two years after — and recidivism rates were nearly identical before and after (between 3 and 5%). I have no doubt that there’s a salacious and heartbreaking story in the New York Post every morning, but the data shows that a decline in the instances of pretrial detention has not resulted in any sort of uptick in people reoffending after getting out on bail in New York City.
In Minority Report the premise was that the predictions were accurate. If so, does that strike us as fair? Is it an appropriate use of the government to statistically say, “You are like highly likely to commit a crime in the future, even if it’s not your present intention, and therefore, we are going to protect society, from you doing that bad act by arresting you”?
The concept is almost identity to holding someone on bail because of an extensive rap sheet. Did the New York state bill express an opinion on whether judges could consider future propensity to commit a crime on whether to find the offense “bailable”?
That was one thing that the New York lawmakers pushing for reform of the reforms cited — saying that more people had committed violent crimes while being out on bail. However, it’s also the case that violent crime went up in New York City in general, as well as in a lot of other places around the country.
What were the lessons from the NYC Comptroller’s report about the effects of bail reform, besides making it easier to release people who couldn’t come up with the money to pay bail?
There was a significant lowering in the number of people who were detained before trial and there was there was not a corollary rise in crime among that group of people. The people who were released, who likely wouldn’t have been beforehand, did not go on to reoffend in large numbers. Like I said, the the reoffending rate was about equivalent, before and after.
A lot fewer people were assigned cash bail, but the amount of money that was assessed and collected increased significantly. So even though fewer people were given cash amounts to secure bail, those amounts tended to be much higher. I think the average bail amount during that time doubles approximately.
The reforms worked and the report said that, if anything, those reforms need to be strengthened and continued and followed the way that they were written. This newest weakening of those reforms runs contrary to that report.
The reforms required courts to take into consideration the ability of the alleged perpetrator to come up with the money that is ability to pay, because one of the clearest abuses was the concept of, “You’re innocent until proven guilty, unless you don’t have any money, in which case, you’re stuck in jail.”Remember, you have only been accused, but not convicted.
There’s been a lot of experimentation on the bail system. New Jersey has had an interesting, and from all accounts successful, approach to what we do about alleged perpetrators between initial arrest and the first visit before a judge. Tell us about the New Jersey system.
New Jersey has taken an aggressive reform of its own over the past three or four years now. They have developed an algorithm, so to speak, where they plug in different variables, which are the core risk factors. It includes the defendants’ age at the time of arrest, the thing they’re arrested for, if there are other charges pending against the person at the time of arrest, and other things like prior convictions.
Based on that, it determines a recommendation for the judge that’s not binding. So if there are other circumstances to take into account, the judge can still break one way or the other against the algorithm’s recommendation. But it does kind of give us a scientific data-driven basis for what fits this particular situation based on the factors at hand. In a lot of cases, the recommendation is against pretrial detention. Even in those cases where it recommends against pretrial detention, they have a lot of other options for keeping track of someone without keeping them in prison, like ankle monitors. New Jersey keeps them involved in the system. So you may not have to post bail to go home, but you might have to check in the same way that somebody is on parole might have to check in with their parole officer.
They’ve seen a lot of success. Their rates of pretrial detention have plummeted over the past few years and crime has not gone up in turn so much. Fewer people are having to stay in jail based solely on their inability to pay, and at the same time, they’re not seeing higher instances of crime and reoffending.