Bail Reform and Racial Justice

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Martin Luther King Jr. memorial, Washington DC. Photo by Daniel Skoog via Flickr

A year ago this month, New York State legislation aimed at transforming the state’s justice system—most notably through eliminating money bail for individuals charged with non-violent, non-felony offenses—came into effect.

A few months later, in April 2020, stiff opposition from a broad coalition of victims’ rights groups, upstate prosecutors and law enforcement resulted in amendments narrowing those eligible—but still leaving intact a reform strategy that has had a major impact on thousands of New Yorkers of color.

As the nation honors Martin Luther King Jr., the drama playing out in New York continues to be a focus of attention. With some states having passed similar measures and others contemplating new ones, New York in many ways has become a test case for whether the widespread national movement for justice reform and racial equity will continue to have traction as a new administration takes power in the White House this week.

In order to put New York’s legislation in perspective, researchers at the Data Collaborative for Justice (DCJ) at John Jay College analyzed how pretrial release outcomes would have changed if the 2020 legislation had been in place a year earlier.

The researchers focused on the likely impact on justice-involved New Yorkers based not only on where they lived in the city, but on demographic factors like race, sex and age.

The original act required courts to consider an individual’s economic circumstances before deciding whether to set money bail for those charged with misdemeanors and a wide range of non-felony offenses, including drug-related offenses.

The reform was motivated more than anything else by the fact that most of the individuals detained to face trial for low-level, nonviolent offenses were too poor to raise even the minimal costs of a bond, and had little access to legal advice that could help them plead mitigating circumstances.

As a result of the April amendments, the number of individuals eligible for bail decreased slightly. But a report by the Center for Court Innovation (CCI) in June predicted the pretrial jail population would still shrink by 30 percent.

Experts say early data indicate the law has already significantly reduced incarceration numbers in a system that disproportionately affected people of color. Supporters said it was a crucial step towards ending the “criminalization” of poverty.

“It has caused] a profound impact on justice in New York—a sea change,” Michael Gianaris, Deputy Majority Leader of the New York State Senate and author of the original act, told a webinar this fall organized by John Jay College’s Center on Media, Crime and Justice, publisher of The Crime Report.

The Difference a Year Makes

According to DCJ research, after analyzing New York City Office of Court Administration (OCA) data, had the 2020 bail reform been in place a year earlier, some 12,609 individuals arraigned in 2018 would not have been required to post bail or face pretrial detention.

That represents an estimated cumulative reduction of almost $67 million in the actual amount of money bail set that year.

More than 6,600 of those cases involved African Americans, and 4,000 cases involved Latinx individuals―underscoring the racial imbalances in New York’s justice-involved population.

Moreover, when looking at the data broken down by borough, the researchers found that Staten Island had the largest proportion (28.1 percent) of alleged offenders who were able to afford bail, while The Bronx—considered the city’s poorest borough—had the lowest (19.6 percent) proportion of cases.

Manhattan would have been the most impacted by the bail reforms if they had been passed a year earlier, said the researchers, who estimated an additional 6,748 individuals would have been released under their own recognizance for appearance before a judge at a later date.

Under the amended reforms, about 1,600 fewer cases would have been releases without bail.  There would have been a 1.4 percent fewer men.  Broken down demographically, there would have been 2.7 percent fewer Black and Lartinx, and 10.3 percent fewer 25-34 year-olds who would have qualified for exemption from money bail.

Finally, the researchers asked an even more ambitious question: “How would pretrial release outcomes differ had the 2020 bail reforms been in place between 2005 and 2018?”

Their extensive research found that the New York courts arraigned approximately 4.4 million cases during that time period. Their data collection also found that had this reform been in place between 2005 and 2018, the courts would have been required to release individuals without bail in an additional 555,715 cases where bail was actually imposed.

The study did not similarly try to estimate any possible difference in the crime rate if the bail reform had been in place earlier—opponents warned that eliminating cash bail and releasing alleged offenders threatened public safety. But crime rates have been steadily declining over the last decade in New York.

A study published in November by the Prison Policy Initiative of four states, as well as nine cities and counties, that had initiated pretrial reforms found that all but one of the jurisdiction experienced subsequent “decreases or negligible increases” in crime.

John Jay researchers cautioned that eliminating bail still carried risks of “unintended consequences,” such as imposition by judges of conditions for supervision that “might subject an individual to a greater risk of failure when they might otherwise have posted bail and simply returned to court.”

Similar there was little in the current legislation to help judges “meaningfully “ assess financial hardship of the individuals requesting release.

“As New York moves forward with criminal justice reform, it is imperative that we continue to closely track and measure the impacts of these reforms to ensure that they are driving fairness in our system of criminal justice and safety in communities across the state,” the study said.

The Data Collaborative for Justice (DCJ) at John Jay College of Criminal Justice houses a group of research initiatives that raise important questions and share critical research about the criminal justice system and its role in creating safe, just and equitable communities.

Contributors to the report included Olive Lu, M.S., Erica Bond, J.D., and Preeti Chauhan, Ph.D.

For additional information, including speakers and presentations at the bail reform webinar, “Bail Reform in New York: What Happens Next?” please click here.

The full report can be accessed here.

 Andrea Cipriano, a staff writer for The Crime Report, contributed to this summary.

One thought on “Bail Reform and Racial Justice

  1. Crime is out of control in New York. All these soft on crime policies and emptying of the jails isn’t making our communities safer, but rather making them much more dangerous. Eliminating bail is not going to make the system fairer or safer. Teaching our kids to not commit crimes and holding them accountable if they do will. It isn’t rocket science. Bail is not a mechanism of detention. It is a tool for release. Eliminating it only eliminates one of the arrows in the decarceration toolbox.

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