How New York’s Bail Reform Has Impacted Its Pretrial Systems

(A man enters the road to Rikers Island on March 31, 2017 in New York City. Photo by Spencer Platt/Getty Images)

In the two years since lawmakers passed sweeping reform, fewer people are being detained pretrial.

By Matt Keyser
National Partnership for Pretrial Justice
March 2, 2022

Two years ago, New York lawmakers passed sweeping bail reform with a goal of reducing the state’s jail population and lessening its reliance on wealth-based detention.

To do so, lawmakers crafted new laws that limited the use of cash bail — largely eliminating cash bail for misdemeanors and non-violent felonies.

Despite political controversy and misleading media coverage, those reforms have largely been successful, said Jullian Harris-Calvin, the director of the Greater Justice New York program for the Vera Institute of Justice. [Vera, an NPPJ partner, is studying the impact of bail reform in New York through support from Arnold Ventures.]

We spoke Harris-Calvin about the effects of New York’s bail laws and why continuing to invest in evidence-based policy solutions make communities safer.

This interview has been edited for length and clarity.

NPPJ: Can you give me a sense of why New York decided to reform its bail laws?

Jullian Harris-Calvin: There has been a push to reform the criminal legal system after many, many years of tough-on-crime policies that prioritized incarceration as the solution to public safety needs. These policies in New York, and across the country, really became most salient in the mid-‘90s with the federal crime bill — but we saw it here with Rockefeller drug laws. [The Violent Crime Control and Law Enforcement Act of 1994 created funding incentives that reinforced mass incarceration. The 1973 Rockefeller Drug laws mandated harsh sentences for low-level drug offenses.]

That tough-on-crime legislation sought to incarcerate first as opposed to finding a holistic solution to public safety concerns. So our jail and prison populations exploded as more people were detained on unaffordable bail while awaiting trial and post-conviction sentences got longer and longer. What I think everyone has come to realize is that people who filled the pretrial system, who were incarcerated even though they’re presumed innocent, were Black and brown New Yorkers and poor New Yorkers.

As the social science came out, the narrative changed around crime and the best solutions to crime. People and policymakers started to listen to community members and community groups led by formerly incarcerated people or others who were impacted by the criminal legal system.

So in 2017 and 2018, there was a big push around bail reform. The time was right. Our crime was going down for over a decade, arrests had been going down for over a decade, and our jail populations weren’t at their height from the mid- to late-90s.

It was the right moment to address the racial and moral disparity that exists when you have people who are presumed innocent being incarcerated simply because they are too poor to buy their freedom.

NPPJ: It’s been two years since those reforms became law. How have they been received? 

JH-C: There was initially a lot of support for it. But even before it was set to go legally into effect in January 2020 — before there was any data to pull from or to be gathered — there was a concerted effort by pro-tough-on-crime sectors to call for a rollback of bail reform. They were saying it was leading to a rise in crime, that it was going to lead to the gates of the jail opening. It was just a concerted fear-mongering and misinformation campaign.

This first happened in 2019, a year that had historic lows in terms of crime and arrests. So there’s this rhetoric happening during a period when crime is at historic lows, people are not being arrested, communities are safer as a general matter than they’ve been in decades.

When the reforms went into effect in January 2020, crime rates continued to plummet and arrest rates continued to go down. Our jail populations across the state were down by 40%. In New York City, a place where Rikers Island held 20,000 people in the ‘90s, the jail population went to the lowest we’ve seen — down to about 3,800 people. That 30-year comparison point is incredible.

And in the beginning of 2020, crime rates remained on par with 2019 — historic lows. Then came the pandemic, which created all kinds of disruptions that we’re still seeing both in New York and across the country that we’re going to be finding out and learning the effects of on all contexts of private and public life.

What we did see come the end of 2020 and into 2021 is the rise in certain kinds of crime — namely, gun crimes and homicides. Most other “index crimes,” which are the top seven crimes listed by the FBI, remained on par with 2019’s historic lows. But it’s true and it’s important to note that gun crimes and homicides rose during the pandemic — not just in New York but across the country. And we’re still seeing it across the country, in states where there has been no criminal justice reform, in red and blue states, rural and suburban areas.

It’s clear that bail reform is not driving this nationwide uptick in gun crime and homicide. But the same voices that are claiming a widespread rise in crime — which didn’t exist in 2019 and 2020 — are now blaming rise in crime on bail reform and are continuing to spread fear mongering and misinformation and blaming bail reform. There isn’t evidentiary support for that. And while it feels like an easy fix, it’s a political solution but not a policy solution.

[Read more: Transparent Approach Gives New York City a Clearer Focus on Pretrial Services]

NPPJ: And that’s an argument these pro-carceral forces are making across the country, regardless if a certain jurisdiction has passed bail reform or not.

JH-C: Exactly.

NPPJ: So much talk about New York’s bail reform centers around large areas like New York City — and understandably so with its large population. But I’m curious how less populated areas that don’t necessarily have the big-city resources to provide pretrial services are implementing these reforms?

JH-C: I think our leaders have recognized that you can’t just say, “Let’s rely on this particular ineffective solution to public safety, which is pretrial incarceration, writ large, without investing in the kinds of public safety solutions that get at the root causes of crime and arrest.” There’s a reason that most people end up having contact with the criminal legal system.

One benefit is in New York City, there’s a robust pretrial supervision and pretrial services structure that other counties across the state do not have. So if the government isn’t getting funding to these small jurisdictions to augment or even establish pretrial services for people that give them stability, to return to their communities and their families — such as housing, mental health and substance abuse treatment or other needs — then we’re not addressing the public safety issue at all.

I’m a former public defender and I’ve had clients who went into a CVS and stole laundry detergent or they’ve snatched a sandwich from Starbucks. Those aren’t crimes that are part of some Machiavellian criminal enterprise. They arise from drug use or mental health or poverty issues. If we’re not addressing those issues, we’re not going to keep communities and families safe.

That’s why it’s so great that Gov. Hochul’s proposed budget this year includes setting aside money for alternative solutions to public safety, like community violence intervention programs and services for people who have been caught up in the criminal legal system at the pretrial stage.

NPPJ: What is it that she’s proposing for these smaller jurisdictions? 

JH-C: Her proposal includes $16.1 million in additional executive funding for community violence intervention programs, $10 million for pretrial services, and $20 million to support communities affected by gun violence. Critical investments in these types of intervention services will have a huge impact on communities across New York and will help make New Yorkers safe.

That $10 million is certainly a start. But if New York City is spending $72 million on pretrial services, the very least the other 57 counties should have is $72 million — and even that might not be enough, but it probably gets them off to a better start than $10 million.

And for the community violence interruption programs — again, a great start. But we certainly need more money, and we need a bigger infrastructure because there certainly isn’t enough infrastructure outside of New York City.

NPPJ: It’s only been two years since the statewide bail reforms went into effect. Is it too early to say whether they’ve been successful? 

JH-C: They have been successful. There were two main goals of bail reform: decarceration of our jails and to reduce the number of people jailed merely because they are too poor to pay their way out. In essence making it so there are not thousands of New Yorkers held in jail simply because they can’t afford to pay their way out when someone with the same record and the same circumstances that are alleged are able to pay, get out, and fight their case from home.

Our jail populations plummeted across the state within the first year. So we have been successful in moving towards that goal. Sadly, we are seeing populations tick back up since about mid-2020, and there may be a whole host of reasons for that.

Then the second goal of making it so that people aren’t held in jail merely because they’re too poor to pay, we have certainly reduced that problem. Eliminate, not so much, but reduce, most certainly. There are thousands fewer New Yorkers — still predominately Black and brown — who are languishing in jails pretrial, simply because they’re too poor to pay.

NPPJ: Given where New York’s bail laws stand today — the adjusted reforms, the constant attacks from pro-carceral forces — I’m curious your thoughts on what’s next?

JH-C: I certainly think for this legislative session, given the political rhetoric around bail reform, there shouldn’t be any changes at this moment to our current bail law. There should be an investment based on the kinds of evidence-based public safety solutions that address the real harm and pain that people and communities — particularly communities of color who have been harmed by mass incarceration and overpolicing — are suffering because of the uptick in gun violence in New York and across the country. Again, that’s investing in more pretrial supports and services that really get at the heart of the criminal legal system.

Secondly, it’s investing in community violence interruption or other community-based non-law-enforcement solutions and supports.

The third is the understanding that today’s shooting victims are often yesterday’s shooter. Too often when people talk about survivors and victim services, they’re imagining a person who is wholly divorced from crime. We imagine that their only involvement is that they’ve been harmed this one time by this one perpetrator when, in fact, a lot of people who are victims and survivors of violent crimes are sometimes also perpetrators of crime, specifically violent crime. So we need to invest in survivor services and support that do not exclude people who have criminal records or who have been the perpetrator of crime, specifically violent crime, in the past.

If we’re not including them in our services and supports, we’re not preventing crime, and we’re not making the communities harmed by violence whole.