The CUNY Institute for State & Local Governance is researching the implementation of the state’s new bail laws to help us better understand their impacts.
By Matt Keyser
National Partnership for Pretrial Justice
May 12, 2022
Kalief Browder was a 16-year-old high school sophomore from the Bronx when he was arrested for stealing a backpack. It’s a crime for which he long maintained he was innocent.
Regardless, Browder spent three years in Rikers Island Jail in New York City, a jail complex that’s been described as “dysfunctional, decrepit and dangerous.” He was unable to pay his $3,000 bail. More than half of his stay was in solitary confinement while awaiting trial.
It was a trial that ultimately never came.
In 2013, prosecutors dropped all charges against him.
“His story highlights the inequities in the pretrial system,” says Cecilia Low-Weiner, research associate with the CUNY Institute for State & Local Governance (ISLG). “It really raised the question: Is it fair to detain someone for a relatively minor offense, where the harm done was minimal, and the person hasn’t been convicted of anything?”
Browder’s case gained national headlines and became a driving force for the need to reform the state’s bail laws that ultimately took effect in January 2020. Those reforms limited the charges that were bail eligible and reduced the state’s pretrial jail population. Browder’s theft case, for instance, would have allowed him to walk free while his case worked through the criminal legal system.
Today, CUNY ISLG is researching New York’s implementation of this bail reform — in addition to other criminal legal reforms that passed in 2020. The research involves interviewing stakeholders and reviewing policies and training documents. An internal report documenting results from a first round of interviews was circulated to participating counties and agencies this week. The primary findings centered on key challenges faces by stakeholders across the criminal legal system, such as pretrial services agencies. These lessons learned will help guide other jurisdictions undergoing similar reform efforts. The research is supported through a grant by Arnold Ventures.
We spoke with Low-Weiner and ISLG Associate Research Director Jennifer Ferone about what’s been learned about Browder’s case and how New York’s bail laws have since changed.
This interview has been edited for length and clarity.
NPPJ: Can you give us a sense of how New York pretrial systems ran in the years before bail reform was passed?
Jennifer Ferone: From my perspective, the pretrial system in New York — specifically New York City where most of my own work has been focused — has been undergoing incremental change for over a decade now. At its worst, throughout the 1990s, the jail population was extremely high and we know that the conditions on Riker’s Island were and still are dire. Individuals were cycling in and out of the jail, many of whom forminor offenses, before they were even convicted of the crime they were charged with. Unfortunately, given the nature of the bail system, two people with the same charge may have had different pretrial outcomes simply because of their ability to post bail—one being held in jail while another was released to their community to await the final result of their case.
That said, the jail population in New York City has been consistently falling since about 2009—and even before that had been falling since the early 1990s. This has a lot to do with various reforms undertaken by city criminal legal system agencies. Nearly every year there has been a new change, a new reform or new policy or practice that has contributed to a reduced reliance on incarceration.
For example, in the city, there are certain charges that police stopped arresting for, such as low-level marijuana possession. Further, some district attorneys set policies to decline to prosecute certain crimes and instead focus on ways to divert individuals from the system into other services, and more community-based alternatives to incarceration were implemented.
Jurisdictions outside the city have been making similar strides, though my understanding is that use of pretrial detention for misdemeanors and nonviolent felonies was used at a higher rate outside the city prior to bail reform. A lot of the differences we see though have to do with resources and what counties outside the city have available to them—a key theme emerging from our process evaluation.
Cecilia Low-Weiner: I would add that around 2016 is when supervised release launched citywide in New York City. That’s been huge in helping keep folks in the community, who may otherwise have been held on bail, while they’re awaiting trial.
JF: New York City definitely preempted some of the bail reform legislation. It expanded supervised release eligibility criteria to include more people prior to 2020.
NPPJ: So because New York City was leading its own efforts to reduce its reliance on bail and pretrial detention, the bail reform legislation was largely modeled after its policies?
JF: I think a lot of policy decisions are made based on New York City just because of the volume. A lot of people live here in the city and a lot of the state’s incarcerated population is driven by New York City’s numbers. So I think a lot of policy decisions get based on what’s happening here. I’m not saying that is always the right way. I think other counties in the state may feel excluded, like their experiences aren’t heard as well. And in fact, we have heard in our work that some agencies in counties outside the city felt that a lot of the legislative language used in the new law included specifics that were driven by city examples. That said, there are a lot of promising lessons learned coming out of New York City.
CL-W: And Rikers — which is, obviously, in the city — has become a symbol of inequities. You have Kalief Browder, whose case raised a lot of awareness. There was a push from a lot of advocacy organizations and public defenders to push bail reform through. These were talks in the process for a long time before the Legislature was composed of the right people to actually push it through. There was also a lot of pressure on the governor’s office. In recent years, there have been steps taken in New York City to decriminalize certain offenses and issue civil summonses instead of criminal summonses, so there was really this momentum building. The idea now is that reform is in the spotlight and this is the time to move forward and act
NPPJ: What does Browder’s case say about New York’s pretrial system at the time?
CL-W: His story highlights the inequities in the pretrial system. He was jailed for a low-level theft and held on bail that was probably out of reach for most New Yorkers. It really raised the question: Is it fair to detain someone for a relatively minor offense, where the harm done was minimal, and the person hasn’t been convicted of anything?
And it brought about this legislation that sought to level the playing field. Prior to the reforms, if you were accused of a crime and you had the financial means to get out, you could get out. But Browder’s case was such a stark example of what happens when you don’t have those means.
It also highlighted the need for speedy trial and discovery reform because the case processing times were so long. And each time he was brought before a judge, the prosecution said they were not ready to move forward. He waited in jail for three years awaiting a trial until ultimately the charges were dismissed.
JF: There’s a lot of misunderstanding out in the public that bail keeps “dangerous” people off the street. But if you look at Kalief Browder—a powerful example of the inequities built into the system — you have to ask yourself, “Why can someone who does the same exact thing as another person stay in the community, while the other is held in jail, simply because they have the money to pay the bail amount set by the judge?” You also have to ask yourself why someone was held on such a minor charge that could have been addressed in a more holistic way outside of the jail.
NPPJ: Right. How is public safety benefitted based on someone’s ability to pay money to buy their freedom?
NPPJ: Almost immediately after the state’s bail laws took effect, there was backlash from critics who wrongly claim — and continue to claim — that bail reform is causing a rise in violence. How do you combat that narrative when a growing body of data is showing that’s not true?
JF: That’s something a lot of individuals who push for reform and see the need for reform are grappling with right now. We can’t deny the crime trends right now. But you also have to understand there were so many things happening during the time bail reform went into effect. You have COVID and people quarantining and social distancing. There were the racial justice movements happening in the summer of 2020. And there are just regular fluctuations of crime. We’ve been having fluctuations of crime — cycles of increased and decreased crime — for centuries.
It’s very difficult to unpack and disentangle this recent uptick from all that’s been happening. Scapegoating bail reform isn’t the answer. One clear way we know this is that violent crime is rising across the country — it isn’t just isolated to New York. Other states and jurisdictions out there have not implemented bail reform and are experiencing the same increased levels of violence. It’s happening in progressive jurisdictions and non-progressive jurisdictions. That’s pretty solid evidence against the fact that it is all due to bail reform.
If you look at the numbers the state has produced, only 2% of individuals released are getting rearrested for a violent offense. That’s not to say that one violent act isn’t one too many, but these laws are simply not releasing a large number of people who then go off to commit violent acts like the media and others make it sound.
And like I mentioned at the beginning, New York has been reducing its reliance on incarceration for almost a decade now without increases in crime. We’ve been able to successfully implement community-based alternative models. Supervised release has been a response way before bail reform. And we weren’t seeing the same violent crime increases at that time. And if you look at different reform movements across the country, they’re having similar successes. We feel that there is something else going on, and we haven’t been able to dig deep yet. It’s a nuanced conversation.
You need a full-scale evaluation of bail reform with comparison groups and controls, and we haven’t been able to do that yet. So to point fingers and blame bail reform at this point is just not accurate.
NPPJ: Right. It’s only been two years since the reforms became law and their implementation coincided with a worldwide pandemic.
JF: Yes. There was a period of time where people were isolated and few arrests were being made. That’s a difficult time for researchers to figure out how to disentangle. In our process evaluation where we speak with various agencies, we ask them about the impact of the legislation on the numbers, and it’s very hard for them to have a sense of it because there was so much changing. Courts weren’t in operation for a long time. Arraignments weren’t happening. Police weren’t making as many arrests. There’s a lot to unpack.
CL-W: There has been decades and decades of research into what drives violence. The root causes of violence, like lack of housing, lack of mental health and social services, unemployment, et cetera, are long-term issues that require long-term community investment of time and resources. But most people want quick solutions, so it’s hard to build the public and political will to take the time to research and implement effective solutions when what people want — and politicians want to deliver — immediate, tangible impacts. So it becomes easier to blame bail reform and take action to reverse changes to give the public a sense that something is being done.
Also the media is known to highlight and harp on crime to the point it verges on fear mongering. Surveys go out, especially around election times, where people are asked about their perception of crime and because of concentrated media coverage it, their perception often isn’t in line with what’s actually happening.
NPPJ: I imagine that bail reform is going to stay a hotly debated topic for the foreseeable future. What should the focus of lawmakers be as they consider any future amendments to the reform?
JF: I think more and more researchers are thinking about this question. I think lawmakers should take a beat, look at the data and see what the data is saying. We’re in a better position now, post-COVID, where we can look at trends and assess the data the Office of Court Administration and the Division of Criminal Justice Services have released to the public — data they are planning to release annually in addition to other data released directly by criminal legal system agencies.
They should look at what’s happening to individuals who are released back into the community and assess their outcomes, in terms of recidivism but also beyond recidivism. Look at the positive impacts of people not getting bail and not being in jail while their case is pending. They’re able to be with their families, remain employed.
I think that we’re missing some of the positive impacts from individuals that are impacted by the system.
CL-W: Although you don’t necessarily get those stories from the data collected, there is a lot of research showing the consequences of time spent in jail. If you’re thinking about even short stints in pretrial detention, there’s an increased risk of loss of housing, employment, loss of custody of children. There’s also the longer-term effects on case outcomes, such as increased likelihood of pleading guilty just to get out of jail — regardless of guilt — or being more likely to be convicted or receive a harsher sentence. These collateral consequences, often ignored, cause great harm to communities. We don’t hear enough stories about how these reforms help individuals avoid these consequences and remain in the community. We need more qualitative data from folks who have benefitted from these reforms to help tell these stories and shed light on the positive impact of this legislation
NPPJ: On the media front, how can news coverage of bail reform be more fair and balanced?
JF: We’re doing a media content analysis as part of our work. One component of what we’re looking at is ways individuals who are impacted by the criminal legal system are portrayed in the media. What we have observed so far is the use of really dehumanizing language when talking about people with cases in the system. They’re often portrayed in a negative light. No positive stories are told about how an individual may have avoided jail time, which had positive impacts on their life. If we can redirect that and be more balanced, that would go a long way.
NPPJ: It seems in most news stories the people being written about are already convicted of the crime before there’s a chance for their case to work its way through the system.
JF: We’ve reviewed other media content analysis reports on the same topic — both from New York and elsewhere — that have highlighted the misinformation that is portrayed by the media. Outlets often don’t explain the legal nuances involved. The news story might say that an individual was charged with a violent crime and point the finger towards bail reform, when in reality the charge was bail eligible but the individual was released due to judicial discretion—which is how it worked prior to January 1, 2020. The stories don’t often explain that the law allows for bail to be set, but the judge used their discretion to make the decision. And individuals that are against the bail reforms argue for that very same judicial decision-making power.
Reporters could do a better job of portraying decisions accurately and telling the facts rather than blaming bail reform. In ways, it twists the story to make it something it’s not, which shapes public perceptions.
NPPJ: That’s a great point. It’s as if all bail is grouped together — there’s often no distinction if someone was released on their recognizance or paid their bond or a judge’s decision.
CL-W: Right. And they may have been released on a charge that may have been bail eligible for release prior to the reforms. Often we see that reporters tie anything that happens back to bail reform. If you look at two of the most widely read outlets here, the New York Post and Daily News, their front pages are almost always crime related. People are consuming those stories and if you’re reading that constantly, it’s hard to see the other side. It’s rare in media coverage you get a nuanced look where you’re actually hearing from folks who have been impacted.