The tightening of New York’s landmark bail reform law will still reduce the pretrial jail population by 30 percent, even though it will likely incarcerate hundreds of people who might otherwise have been able to await an appearance before a judge at home, a panel was told Tuesday.
As a result of amendments to the bail reforms passed by New York State in April, the number of individuals now eligible for bail has increased, according to a report by the Center for Court Innovation (CCI).
Nevertheless, even the law as amended will foster a much-needed “culture of pretrial release” among judges, CCI experts told a webinar convened to discuss the report Tuesday.
The original law, which went into effect on Jan. 1, eliminated cash bail in nearly all nonviolent cases and narrowed bail-eligible offenses to violent felonies and a few nonviolent felonies. But, pushback from law enforcement and conservative state legislators led to amendments that further reduced the numbers eligible for bail—particularly individuals subject to felony arrests.
“As you go from misdemeanors to violent felonies, the effects of the amended reforms become greater,” said Michael Rempel, CCI’s director of jail reform.
“Compared to the original reform law, the number of defendants that must be released under the amended reforms decreased…from 97 percent to 93 percent for misdemeanors and from 11 percent to 6 percent for violent felonies,” he said.
As a result, the detained pretrial population in New York City will likely rise by 16 percent, or an estimated 470 people a day, he said—though that is still significantly lower than the number who would have likely been jailed if the bail reform had never been passed.
Rempel and the other panelists said New York State’s bail reforms represented a “historic” step in efforts to reform a system that disproportionately harms minority communities.
In its recent report, the Center found that “the amendments still allow for an estimated 30 percent reduction in the city’s jail population when compared to the absence of any reform.”
Criticism of the initial law was fierce with opponents tying some crimes to individuals who had been released under the measure. They pointed to cases like Tiffany Harris, who was arrested three times for assaulting Orthodox Jewish women in Brooklyn in less than a week, and Eugene Webb, who was released after allegedly assaulting a woman in Manhattan and then hours later apparently assaulted a second woman.
“The state legislature did not understand or appreciate what it was doing when they hastily reformed the state’s bail system,” said Todd Casella, a district attorney in New York’s Yates County.
Staten Island Assembly member Nicole Malliotakis warned that if the law weren’t modified, “There’s going to be blood on (NY) Gov. Cuomo’s hands.”
This backlash led the state legislature to amend the bail law in April. The measures expanded the categories of bail-eligible offenders and added to the pre-existing set of non-monetary conditions that judges can impose on defendants to ensure they return to court.
CCI, a New York City-based non-profit organization that advocates for court reforms, studied the effects of the both the original and amended reforms. The organization analyzed the number of individuals in pretrial detention in New York City pre-reform and after the original reforms went into effect.
It also predicted the size of the pretrial detention population after the amended reforms go into effect, assuming judges would make the same bail decisions as they did in 2019 for cases made bail-eligible once again.
Five CCI experts shared their findings during Tuesday’s webinar.
As compared to the pre-reform era, the original reforms led to a 40 percent reduction in the pretrial jail population in New York City, a drop from 4,996 inmates in April 2019 to 3,014 in March 2020, said Michael Rempel.
However, Rempel predicted that the amended reforms will increase the city’s pretrial jail population by 16 percent relative to the new – March 2020 – baseline of 3,014.
That means because of the amendments, approximately 470 people who would otherwise be released will be put back in jail on an average day.
Although the new law made over 25 charges newly eligible for bail and remand, changes to just three charges accounted for 49 percent of the projected increase. These charges included burglary in the second degree, criminal possession of a controlled substance in the first degree, and criminal sale of a controlled substance in the first degree.
Rempel noted that all three of those charges do not involve violence.
Rempel also reported that the original reform law made approximately 88 percent of all defendants ineligible for both bail and remand. That number dropped to 84 percent as a result of the amended reforms.
Along with the new law’s impact on the jail population, the Center predicted what the amended reforms would mean for a so-called “culture of [pretrial] release” on the part of New York City judges.
Krystal Rodriguez, deputy director of jail reform at CCI, said the statutory requirements contained in the reforms, including the requirements for judges to consider defendants’ ability to pay bail and to impose the least restrictive conditions on defendants who are released before trial, will help foster such a culture.
Like the reform laws, the Center’s Supervised Release Program will incentivize judges to release defendants. The program supervises pretrial defendants in the Bronx, Brooklyn, and Staten Island, administers a risk assessment of each defendant, and provides them with referrals to appropriate social services. In this way, the program assures judges that defendants will make their court dates should they be released.
The results of the program serve to illustrate the point, said Jonathan Monsalve, Project Director for Brooklyn Justice Initiatives. Over 15,200 individuals citywide have participated since 2016. Of those, 87 percent attended every one of their court appearances, and only 8 percent were re-arrested on a felony charge during their time in the program.
While the reforms and the Supervised Release Program will certainly help create a culture of pretrial release, the effects of other factors – including COVID-19, the new national conversation on systemic racism and police brutality, public safety concerns, judicial discretion, and the media’s response – are harder to predict, said Rodriguez.
However, Rempel concluded, if judges adhere to the requirements of the bail laws and utilize the available alternatives to incarceration, “it is still possible to lower our jail population and foster a culture of release through our supervised release program.”
The full webinar can be watched here.
Michael Gelb is a TCR News Intern.