(Photo: Getty Images)
By Matt Keyser
National Partnership for Pretrial Justice
When New York passed statewide bail reform in 2019, it replaced an outdated system that wrongly jailed poor individuals who couldn’t afford to buy their freedom as they awaited resolution in their cases.
The reforms that took effect in January 2020 largely outlawed cash bail for nearly all misdemeanor and non-violent crimes. A year later, lawmakers have added to the list of crimes that are bail eligible, including any crimes resulting in death, sex trafficking, and aggravated assault of a child younger than 11 years old. The changes came after sparking an outcry that the reforms were causing a rise in crime. Politicians such as New York Mayor Bill de BLasio and Gov. Andrew Cuomo supported the stricter measures.
In Dutchess County, a community with a population of nearly 300,000 that hugs the Hudson River and the New York-Connecticut border, officials spent months planning for the new changes. In what they described as a collaborative effort among all parties involved, they identified cases that would become bail eligible, how they could prevent overwhelming the court system when reforms took effect, and how they could provide services to those who would be released.
NPPJ spoke with members of the Office of Probation and Community Corrections in Dutchess County, about implementing the state’s new bail laws and what other states can do as they grapple with bail reform. This interview has been edited for length and clarity.
NPPJ: Why was it so important for New York to pass bail reform?
Mary Ellen Still, director of the Office of Probation and Community Corrections: In New York, there had been discussion around bail reform for quite a long time. I think people were anticipating that there would be some type of bail reform, and I think most felt there was a need for bail reform. We had looked at other states that had implemented some types of reform. The question was the form it would take.
Jonathan Heller, principal probation officer: The biggest thing of importance in bail reform is that it shifts the focus to a presumption of release when someone is arrested. Before it was a presumption of incarceration. Now, right off the bat, there’s a presumption of release and the courts have to justify putting someone in jail.
NPPJ: So it’s a whole new shift in thinking.
JH: A paradigm shift.
Kathy McQuade, probation supervisor for pretrial services: It’s very much a new culture with the presumption of release. We’re very fortunate in Dutchess County: our pretrial unit has been accepted by the judges locally, even before bail reform. So bail reform was another avenue that we could work very closely with our judges, the district attorney, the public defender, or the private attorney sector for release options.
NPPJ: What kind of preparations go into implementing this type of large-scale reform?
MES: We have a very active criminal justice council in our county that has been in operation since it was formed in the early 1990s. It consists of about 35 people from different agencies: the district attorney; the public defender; judges; the heads of various agencies; citizen appointments. The council was very involved from the beginning about how we were going to implement the reforms—trying to predict what issues we might face and how we would go about resolving those. In addition to forming a specialized workgroup for bail reform, the Council consists of 10 different committees that focus on various issues and topics within the system.
KM: The bail reform workgroup started meeting in September of 2019 to address each jail case that would become eligible for release in January 2020. Our next step was to include our county court judges who would sign the writs for release. Once this process started, the judges could calendar cases even earlier so there was not an influx in January. It saved our courts’ time, it saved pretrial services’ time, it saved the attorneys’ time and the district attorney’s time.
JH: It was nice to all work together so that the courts weren’t clogged on Jan. 1, there wasn’t a mass exodus from the jail all at once, and the releases had some degree of control so that people weren’t walking out on the streets without any services or support. We looked at each case individually and had a plan.
NPPJ: You mention the collaboration. Does working in a smaller county make it easier to build that collaboration among parties where you all know one another, where you work together regularly compared to a larger county that might not have those same relationships?
MES: It does help. We’re not so small that we don’t have resources or it’s difficult to access them, but we’re not so big that we don’t know each other very well. I think it’s always been the culture of our county to be highly collaborative. Our Criminal Justice Council meets six times a year to discuss issues of importance. And we have a consultant attached to the council who helps us look at issues objectively. Our subcommittees meet more frequently and focus on various topics and issues. We look at data and what the research is telling us. We are committed to evidence-based practices.
NPPJ: More jurisdictions across the U.S. are really embracing data. How are you all using data to drive your decisions?
KM: Every week our consultant provides us with the highlights of the jail and the current jail population. The data show sentenced, pretrial, and those people awaiting transfer to state corrections facilities. This information is invaluable and increases efficiency.
JH: The advantage of having a research consultant is that we’re able to study and discuss the data. We can resolve issues or further question the data if any anomalies appear.
NPPJ: Was there any pushback to bail reform by judges or prosecutors in Dutchess County or was it pretty widely accepted?
MES: I think as with anything new, people had questions and concerns; often specific to their particular agency. But because we had that spirit of collaboration and we’re all very solution focused, all the agencies got together [before bail reform took effect] to discuss the coming changes and how we were going to address them.
Our Office of Court Administration formed a state committee and invited all the stakeholders to planning sessions. That helped in terms of having consistency among the counties, but also having input from the counties as to how we were going to implement bail reform.
KM: Change is hard, no matter who we are. We had a base set with our participants in the courtroom and our stakeholders in the community, which made it easier.
NPPJ: It seems so many opponents of bail reform sing the same song: letting people out of jail pretrial will lead to an increase in crime. What have you seen in Dutchess County a year in?
KM: That’s difficult to say. I don’t think we can measure it yet because of the [COVID-19] pandemic. I don’t think we’ve seen an increase in our county. I think the lower jail numbers show people are back with their families or working and we’re not over-relying on the jail to solve our problems.
MES: I don’t think we’ve seen a huge increase in arrests or crimes reported, because we would have noted that. We haven’t seen any major increase in crimes. But I think everyone feels we need a little more time post-pandemic to accurately measure this.
NPPJ: What have been your biggest takeaways from bail reform so far?
MES: I think the biggest takeaways are the number of people who, previous to the reform, had been remanded to jail with some form of bail. Dutchess County had 216 people in the jail as of March 19, 2021, compared to 406 around the same time in 2018. Approximately half of the 216 are held pretrial, compared to 80 percent in 2018.
KM: I think we’re still learning something new every day. Even though it’s been a year, it’s still new. We’re still trying to process bail reform along with the pandemic.
NPPJ: As lawmakers from other states look at bail reform, what advice do you have for them?
MES: I would say to get people involved—not only stakeholders, but community members—as early as possible. Do research and look at the states that have been most successful with it. For New York, it’s still fairly early and interrupted by the pandemic. Look at the models that may fit most closely to their own operations because each state is very different. And look at the data. What data can support the position they would like to implement.
JH: In looking at bail reform in general there are so many models out there. You could argue all day about the benefits of each. The way New York did it, I think it was focused on the whole culture change of the presumption of release. I think it is important to look at what each individual jurisdiction’s issues are, consider what the pretrial population looks like, so you know who you’ll be impacting. Finally, there are budget considerations.
KM: Preparation is important for your community.