The CUNY Institute for State & Local Governance released a fact sheet showing how the state’s reform package impacted four key areas.
By Matt Keyser
National Partnership for Pretrial Justice
Feb. 9, 2023
When New York lawmakers passed an omnibus reform package in 2019 that impacted nearly every aspect of the state’s pretrial systems, they sought to create a more just and equitable system.
They hoped that the days of people being held pretrial on low-level charges, of overcrowded jails, and of a system that overly relied on an antiquated cash bail system would be gone for good. The reform package expanded pretrial services, eliminated cash bail for people charged with misdemeanors and non-violent felonies, and enlarged the criteria for which a person can receive an appearance ticket rather than be remanded to jail.
These reforms took effect in January 2020, weeks before the COVID-19 pandemic halted court proceedings and crippled the state’s legal system.
Now, researchers with the CUNY Institute for State & Local Governance (ISLG) at John Jay College are studying the reform’s impacts on the state’s pretrial systems. In particular, Deputy Research Director Jennifer Ferone and Senior Research Associate Cecilia Low-Weiner are speaking to various stakeholders throughout the state on their experiences implementing the reform package.
In November 2022, they released their first in a series of fact sheets that detail the reform and its implementation.
“Stakeholders generally subscribed to the spirit of the legislation, though they voiced challenges about its execution,” Ferone said. “These challenges were primarily driven by the short planning window—agencies only had nine months to prepare—and lack of additional resources provided by the state for counties to implement these reforms.”
Despite those challenges, Ferone said, “agencies made considerable changes to their operations.”
Reducing the state’s use of cash bail and pretrial detention was the most talked about area of the reform package.
“For years, overuse of pretrial detention has exacerbated the inherent inequities of the criminal legal system — especially for low-income and communities of color — with little to no public safety benefit,” said Low-Weiner.
The new law requires judges to release people charged with misdemeanor and non-violent felonies either on their own recognizance or with conditions or supervision, such as GPS monitoring, as they await their trial.
The result was the number of non-violent felonies in which bail was set dropped by half from 2019 and 2020, researchers have noted.
Prosecutors and law enforcement officials told Ferone and Low-Weiner they’re concerned that limiting judges’ discretion to make their own determinations whether to release or detain a person will impact public safety — a common argument they share across all aspects of the reform package — though current data hasn’t validated those concerns.
Public defenders, meanwhile, have said the changes are “monumental in limiting the harms of pretrial incarceration and leveling the playing field for those previously unable to afford bail,” Low-Weiner said.
Much like pretrial detention, lawmakers restricted law enforcement’s discretion to issue an appearance ticket — a notice to appear in court on a specific date and time — or remand someone to jail while awaiting a pretrial hearing.
Now, anyone charged with most misdemeanors or non-violent felonies will receive an appearance ticket. They also required anyone with an appearance ticket to be seen before a judge within 20 days.
The law did provide some exceptions, including for people arrested on outstanding warrants, those who have missed a scheduled court appearance in the past two years, or those who have been charged with a crime against their family or a member of their household.
Prior to the new law, law enforcement officials had a lot of freedom in choosing whether to issue an appearance ticket or place someone in jail. If remanded to jail, that person would remain there until they met with a judge, who would often set financial conditions in order for that person to buy back their freedom.
Stakeholders told Ferone and Low-Weiner that the implementation for appearance tickets was fairly smooth — since the basic contours of the system already were in place. But in certain town and county courts that meet monthly, the 20-day requirement proved difficult.
Additionally, pretrial service stakeholders said the 20-day window was too narrow for people to enroll and complete diversion programs.
Responding to these concerns, lawmakers passed an amendment to the law in April 2020, shortly after its implementation, that made exceptions for town and county courts, as well as diversion programs.
For their part, prosecutors and law enforcement argue that stripping officers’ discretion to issue an appearance ticket or remand a person to jail will harm public safety by releasing more people back into the community.
However, public defenders told the researchers that drastically limiting law enforcement’s discretion has “helped individuals avoid the negative consequences of detention.”
Specifically, research has shown that there are significant harms associated with spending as little as a day in pretrial detention. Those harms are only amplified the more time is spend in jail, such as losing employment or housing.
By eliminating cash bail and limiting pretrial detention, lawmakers substantially increased the need for pretrial services. Some areas, like New York City, already had a vast infrastructure of pretrial services in place, while smaller towns and counties had a narrow window to form their own division or partner with a non-profit.
“The changes to pretrial services required significant planning and training as pretrial service agencies had to prepare for an influx of clients,” Ferone said.
In New York City alone, its pretrial services division saw a 26 percent increase in clients from 2019 to 2020, data shows.
Stakeholders across New York said the expansion of services proved challenging, especially with the courts. There was often confusion on open-ended areas of the law or how to assign people to services, researchers noted.
“This hindered their ability to plan effectively,” Ferone said.
Not only were lawmakers focused on keeping people out of pretrial detention for low-level and non-violent charges, but they wanted to speed up court-processing times. They did so by standardizing the process by which discovery is shared with defense attorneys.
Under the new law, defense attorneys no longer must file a request with the court for discovery — or evidence held by the prosecution — which must be turned over within a specific timeframe. The former rules only required discovery to be given prior to the commencement of trial.
Low-Weiner said stakeholders cited this process as the “change that required the most planning and led to the greatest challenges.”
Law enforcement and prosecutors endured “significant operational changes” to their infrastructure, such as how documents were transmitted to defense teams.
District attorneys told the researchers the increased work led to burnout and high staff turnover in their offices.
Defense attorneys, however, told the researchers that the reforms were a “sea change that … removed some of the ways prosecutors could negotiate the plea process and allowed their clients to make more informed decisions, leading overall to fairer and more just process for their clients,” Low-Weiner said.