Increased Pretrial Release, Less Reliance on Cash Bail: An Eye on New York Bail Reform

(Photo: Getty Images)

A report by Data Collaborative for Justice at John Jay College provides greater insight into the first two years of New York Bail reform.

By Matt Keyser
National Partnership for Pretrial Justice
May 5, 2022

As opponents of New York’s bail reform push a misleading narrative that the state’s new bail laws are harming public safety and leading to a rise in crime, new research shows the reforms’ benefits of a more fair pretrial system.

A report by the Data Collaborative for Justice at John Jay College finds that New York’s bail reform, passed in January 2020, has reduced reliance on both money bail and pretrial detention, while providing no credible evidence linking bail reform to increased crime. [DCJ is an NPPJ partner; Arnold Ventures provided funding for the report.]

“What we have with the data right now,” says Olive Lu, a senior research associate with DCJ, “is that we can’t point to any clear link between higher crime rates and an increase in pretrial release.”

Comparing the year before bail reform went into effect, in 2019, to its first year of implementation, in 2020, the report finds:

  • Cases with bail set declined 9% statewide, with greater reductions seen in suburban and upstate counties
  • The reforms reduced bail setting in felony cases by 17% statewide, with smaller effects among misdemeanor cases (courts were already releasing most people charged with misdemeanors prior to the reforms)
  • When judges did set bail, their chosen bail amounts did not change, despite the reform law newly requiring consideration of what people can afford

We spoke to Lu about her findings, the pandemic’s impact on tracking bail reform, and why politicians should review findings of proper policy research before making changes.

This interview has been edited for length and clarity.

NPPJ: It’s been two years since New York passed bail reform. What are your findings, and are there any conclusions that can be made?

Olive Lu: One high-level key finding is that from January 2019 to December 2020, arraignments overall dropped 38% statewide. The declines varied by charge type and by region. So the decline was greater among misdemeanors and violations, and also there was a greater decline in New York City compared to non-New York City courts. That’s just arraignments overall — the first piece of the report. The crux of the report looks at the variation of arraignment outcomes.

We looked at pretrial release, which includes release on recognizance or release without bail. We looked at bail setting. Then we looked at remand and cases that were disposed or resolved at arraignment. The key highlights from this analysis were that over the two years, pretrial release — or the proportion of pretrial release — increased across the board. Whether it’s by region or by charge, there’s a general increase in pretrial release.

At the same time, bail setting expectedly fell from 2019 to 2020. The proportion of cases that were remanded directly to jail stayed relatively the same across the two years at around 3%, so a very small proportion.

NPPJ: So across the state, more people were released pretrial in 2020 than in prior years. I’m curious to hear more about your findings in New York City but especially in smaller jurisdictions throughout the state.

OL: An interesting finding is that the increase in pretrial release was actually largest in non-New York City courts. I think there’s maybe a sense or presumption that New York City would be the more extreme for anything, but we actually didn’t find that to be entirely true. In fact, suburban New York — Nassau, Suffolk, Westchester counties — saw the greatest increase in pretrial release, followed by courts in other parts of the state and New York City came in third.

NPPJ: Why is that?

OL: That’s partly because New York City already had the largest proportion of pretrial release, even pre-reform. I think some of that is likely because there already had been measures in place in the city to reduce pretrial detention and reduce bail setting, which didn’t necessarily exist outside of the city.

Along the same findings, except in reverse, is your New York City judges were less likely to set bail across the board compared to judges in other parts of the state.

NPPJ: Almost immediately after the reforms were passed, there were amendments made. Recently, Gov. Kathy Hochul added more amendments by expanding what offenses are bail eligible. How do those amendments impact your research?

OL: Folks are not allowing enough time for these benefits of bail reform to manifest. People are jumping to conclusions too soon, and they’re jumping to conclusions against what the data are showing. Maybe if it were a normal time — a time when a pandemic hasn’t upended our lives — two years of implementation and data are enough to evaluate whether a policy like this has worked as intended, but the policies didn’t go into effect at a normal time in our country.

Take for instance weapons charges, which her most recent amendments addressed. We did a quick analysis at DCJ of these new changes and found that they’re really not going to be contributing to a whole lot of new cases of having bail set. What the data shows is weapons charges, which people are really concerned about, have already high rates of bail setting.

We really need more time and data for a proper assessment of bail reform and its effects. And for researchers, having to navigate two sets of amendments over two years really undermines our ability to do these evaluations or make these assessments, especially because we’re not always able to get data in a timely manner. Sometimes we’re playing catch up with the legislation that’s been signed.

It has been difficult as a researcher to make proper assessments and to evaluate these policies accurately. And then you have folks in government or in the media really jumping to conclusions too soon.

NPPJ: There are many critics blaming bail reform for a rise in homicides across the country. What has your research shown about any link between bail reform and violence?

OL: What we have with the data right now — and I would venture that the 2021 data would show similar findings — is that we can’t point to any clear link between higher crime rates and increase in pretrial release.

The available data that critics have been citing in terms of crime rates really comes out of New York City, and even that does not point to a clear link. If we consider that — as I mentioned suburban New York City and Upstate courts are actually more likely to set bail compared to New York City — we can hypothesize that this link between pretrial release and higher crime rates is even weaker outside of New York City.

A point I want to emphasize is that in our data we show pretty clearly that pretrial release — or the proportion of cases being released pretrial — has been going up throughout the state since at least January 2019. Even before bail reform was passed. Judges were increasingly likely to release people.

Looking at that and looking at historical data, I think it’s really hard to say that bail reform is causing an increase in crime.

NPPJ: You note in your report that weapons charges and weapons-related crimes have seen a big increase during the pandemic, had bail set about half of the time. What do you think that says, especially to the critics who are blaming the pandemic’s rise in crime on bail reform?

OL: I think it undermines that argument. Weapons charges actually had the smallest increase in pretrial release throughout the two-year period we studied. One other piece that undermines that argument is whether bail reform is leading to more violent crimes. One piece that we found for cases involving crimes harming a person, we also did not find a large increase in pretrial release. So for person charges or weapon charges, the data actually show that they had the smallest increases in pretrial release when compared to most other categories. That’s pretty consistent statewide.

NPPJ: Okay, so the data shows that most people charged with nonviolent, low-level offenses are being released. What does that mean for public safety as a whole? What are the benefits of releasing people back into their communities as opposed to sitting in jail awaiting case disposition?

OL: There are such a huge range of benefits of not keeping people in jail, especially those who are charged with nonviolent, low-level offenses. They’re able to go back to work, they’re able to continue to provide for their families, and they’re able to continue to be productive members of society.

Research in criminology shows us that when people are able to continue to work, then their employment isn’t disrupted, when their housing isn’t disrupted, then the overall societal effect is we have lower crime rates, we have lower rates of victimization.

There’s a huge body of research that shows the benefits of keeping people out of jail pretrial. And most times people in pretrial detention are there because they can’t afford to pay bail.

NPPJ: What did the reforms do in terms of addressing racial disparities within the pretrial system?

OL: Unfortunately our data didn’t allow us to do a statewide analysis; we only had demographic data for New York City for both years. We did look at that, and we did look at outcomes by demographic groups in New York City. One outcome that stood out is we know pretrial release increased across the board — it increased for different charges, increased for different demographic groups — regardless of the kind of disparities that have historically existed still persisted.

Release rates were highest for white people and lowest for Black people. This was consistent in 2019 and in 2020. But also in an even more granular timeframe, such as the final quarter of 2020, we were still seeing those disparities.

NPPJ: So regardless of the reforms, those disparities remain consistent in the pretrial system. 

OL: Right. And that’s another finding that stands out. While there’s consistency in terms of increases in pretrial release and declines in bail setting, there’s also consistency in terms of findings that we might not necessarily want to see, which is the persistence of racial disparities.

NPPJ: You mentioned earlier how bail reform was rolled out during the pandemic, which significantly altered American life. I’m curious how the pandemic has affected your research and your team’s ability to get a clear picture of the effects of bail reform? 

OL: For anyone researching bail reform, the pandemic made it much more difficult to say whether bail reform did XYZ. So the argument that bail reform is solely to blame for rising crime is ignoring the fact that we’ve had this pandemic.

In our data, we tracked it by months and quarters and we can clearly see when things happened. For example, when the courts were shut down, when the amendments went into effect in July [2020], when the courts resumed normal operations. We can see the dips and rises. But at the same time, there were so many things happening, so there’s a confluence of factors, and one data point cannot separate all of those intertwined factors.

So the biggest effect of COVID on this research is that it’s made it so much more difficult to pinpoint the effect of bail reform. I think it’s really important to acknowledge that and to be patient and allow researchers time to get the data and evaluate whether the policies are working as intended.


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