The Long-Awaited Arrival of Bail Reform in New York

Days before his 17th birthday, Kalief Browder was arrested in the Bronx during a stop-and-frisk, booked, and charged with second-degree robbery: He had been accused of stealing a backpack. His bail was set at $3,000, which his family could not immediately pay. (Later, after they had borrowed the money, Browder’s bail was denied because he had been on probation at the time of his arrest.) He was sent to Rikers Island to await trial, which, after at least eight delays requested by the State, never came. Browder maintained his innocence the entire time, refusing multiple plea deals, and was eventually released after three years, right before the charges against him were going to be dismissed for lack of prosecutable evidence.

You probably know the rest of the story. Browder had made multiple suicide attempts at Rikers, where he’d been held in solitary confinement for two of his three years there, and where he’d been abused by inmates and the notoriously violent guards. After he was released, he exhibited signs of depression. In 2015, he hanged himself at his mother’s home.

The only thing unusual about Browder’s case is that he never accepted a plea deal. A study from the New York Civil Liberties Union found that in eight counties (Albany, Dutchess, Monroe, Niagara, Orange, Schenectady, Ulster, and Westchester), more than 90,000 New Yorkers spent at least a day in custody on bail between 2010 and 2014. The majority of them were held for only a misdemeanor or violation. About half were locked up for more than a week. On any given day in New York State, people held pretrial account for 67 percent of the jail population, according to Vera, a nonprofit that advocates for justice reform.

The problems with pretrial detention aren’t hard to understand: What would happen in your life if you were suddenly removed from it for an indeterminate period of time? People held pretrial risk losing their jobs, their homes, custody of their children, and their dignity. They lose their liberty, too, in the short-term and long-term: A joint 2017 study by Stanford University and the Human Rights Data Analysis Group found that people who are detained pretrial are 34 percent more likely to be convicted of a crime than those who are not detained—often because, unlike Browder, they choose a plea deal, the seemingly least-bad option.

Linking bail to pretrial liberty effectively renders bail a punishment. It isn’t supposed to be. Under New York law, bail can be set in nine different forms, including bonds where no deposit has to be paid up front or where a deposit of 10 percent or less of the full amount is paid, according to Vera. But in practice, most judges only set cash bail or an insurance company bail bond—the most onerous forms, and the ones that disproportionately harm the poor and working class. Given the racial wealth gap in the US, that means that more than 60 percent of the pretrial prison population in New York is comprised of Black and/or Latinx people.

The theory behind pretrial detention and using bail as punishment is that these measures keep communities safe. But that justification doesn’t withstand much scrutiny. For one, it doesn’t account for the safety of people incarcerated pretrial, who are legally innocent. As Browder’s ordeal illustrates, jail is a dangerous place, and US prison mortality rates are rising. What’s more, these measures may in fact create more crime: A 2017 study on the unintended impact of pretrial detention found that people held for a felony in New York City prisons are 7.5 percent more likely to be rearrested in the two years after release than those who were not detained. This is at least partially due to the stress that incarceration places on job, housing, and family connections.

Prison populations for three Hudson Valley counties east of the river, 1990-2015.

Finally, the overwhelming majority of people who are not detained pretrial show up for their court dates anyway. Pretrial options like “release under supervision,” “pretrial release,” or “supervised release” have proven to be effective middle-ground measures for judges. And community bail funds, like the Columbia County Bail Fund, work hard to ensure that people return to court after being released. The results are good: Ninety-five percent of the people bailed out by the Brooklyn Bail Fund, for instance, make all their scheduled court appearances, despite having no financial obligation to the fund.

Reforms Coming Soon?

There is good news: Earlier this year, New York lawmakers approved a new bail law that will eliminate pretrial detention and cash bail in an estimated 90 percent of cases (most misdemeanors and nonviolent felonies). The new measure is set to go into effect on January 1, 2020. Lawmakers also approved a law that expands the ability of charitable bail organizations to help defendants in the remaining cases.

The law is expected to decrease New York State’s pretrial inmate population by at least 40 percent, according to Vera, and result in the immediate release of almost 4,000 inmates from county prisons in January, according to numbers tallied by the USA TODAY Network New York. That’s crucial at a time when jail populations in rural counties are surging.

Prison populations for three Hudson Valley counties west of the river, 1990-2015.

These reforms are the first substantive update to New York State bail law since 1971, but they extend and codify progressive measures that have already been successful in other parts of the state. For example, the incarceration rate in Madison County is much lower than the statewide average, because judges there have routinely approved unsecured bonds. And over the past three decades in New York City, the number of cases in which bail is set has dropped from 48 percent to 23 percent, while the rate at which defendants are released without having to pay money has jumped from 50 percent to 76 percent, according to data provided to the Marshall Project.

Advocates for progressive criminal justice reform say New York’s law is the most likely in the country to produce positive transformative outcomes. Vera cites five distinctions that set it apart:

Mandatory appearance tickets. For most misdemeanors and low-level felonies, police officers will be required to issue mandatory appearance tickets (essentially a court summons) at the time of arrest, which should limit the amount of time people spend in custody.
Mandatory release on a wide swath of offenses. Most other bail reform statutes in the US leave some discretionary wiggle room to determine whether or not a person is released. New York’s law mandates release for the majority of offenses.
Parsimony in the conditions imposed on release. The new law has “provisions to ensure judges set the least restrictive conditions that will reasonably assure a person’s appearance in court and do not require people to pay for those conditions.”
Discrete role of risk assessment instruments. The new law limits the applicability of so-called “risk assessment instruments,” which critics say reflect racial and class biases.
Mandate for ability to pay and more affordable forms of bail. I wrote above that judges have routinely set only the two most onerous forms of bail, of the nine options available. The new law requires judges to consider a person’s “ability to post bail without posing undue hardship, as well as his or her ability to obtain a secured, unsecured, or partially secured bond.” It also requires judges, when setting bail, to offer at least three or more forms, one of which must be an unsecured or partially secured bond.

New York’s bail reforms are the capstone to a movement that has crystallized and found new moral authority over the past few years. As Senate majority leader Andrea Stewart-Cousins said during negotiations earlier this year, lawmakers want to make sure that they are not “criminalizing poverty, and that there would never, ever, ever be another instance of a Kalief Browder.”