Bail Reform FAQs

FAQ: 

What did the bail reform law do? 

In 2019, the state legislature passed bail reform, which eliminated cash bail for most misdemeanor and non-violent felony charges. It also requires judges to consider a person’s ability to pay in cases where bail is set. Before its passage, thousands of New Yorkers languished in jail without being convicted of a crime simply because they could not afford to pay bail. Overall, bail reform lessened the role of cash bail in New York's criminal legal system and led to significantly fewer people behind bars. 

Has bail reform led to an increase in crime in New York State? 

No. Crime overall has not increased. However, since 2020, there has been a sharp increase in two specific types of crime: gun violence and homicides. This trend is nationwide, across cities governed by Democrats and Republicans, and across urban, suburban, and rural geographies. 

Of the 11,000 people released from New York City jails between January and June 2020—as a result of bail reform and in response to the threat of COVID-19 behind bars—less than 1% were involved in any gun violence during their release. Of that less than 1%, almost half were involved as victims or bystanders to gun violence. 

The most recent publicly available data on gun violence and homicides show an increase in both jurisdictions that enacted reforms like bail reform and COVID-19 releases from jails and prisons, and in places that did not. While there is speculation in the media that criminal justice reform is leading to an uptick in crime, often put forth by political actors with clear agendas, it is not borne out by the data. 

This trend is also hugely troubling and worthy of focused attention because of the loss of life involved. One shooting or one homicide is one too many. To effectively address the problem we must identify the most effective, evidence-based solutions, not merely rely on reactionary carceral responses that fail to make communities safer. Investing in community- and public health-driven interventions has proven far more effective than traditional policing, and for a fraction of the cost. The data show that these programs and services do a better job of preventing and decreasing gun crime than traditional policing and prosecution. Richmond, California’s Advance Peace program led to an 85% reduction in firearm assaults and 65% reduction in related homicides. And a study in Chicago found a 31% drop in homicides and a 19% decline in shootings in two neighborhoods where violence interrupters worked. Here, in New York, implementation of the Save Our Streets (Cure Violence affiliate) program in Crown Heights led to a 20% drop in gun violence than adjacent policing precincts. 

What about dangerousness and judicial discretion? 

States that have added dangerousness often end up with more, not less, people jailed pretrial on lower-level charges, and often see an increase rather than decrease in racial disparities in the criminal legal system. In practice, “Dangerousness” standards allow for arbitrary and racist judicial decision-making and will increase the population of people detained pretrial. New York’s bail law has never allowed for pretrial jailing based on predictions of future “dangerousness,” so any argument that this is what is needed to make our communities safe is a farce. 

Though not commonly acknowledged, significant judicial discretion remains in the system after bail reform. So much so, that some judges have recently used that discretion, in response to lies from law enforcement and politics, to dramatically increase the number of cases they set bail on from the broad range of still bail-eligible cases. In New York City, this has resulted in a sharp increase in the number of people being sent to and held on Rikers Island, where conditions are deadly, amidst a pandemic that is still raging behind bars. 

FACTS: 

  • Bail reform is working. Current data show that the vast majority of people released were not rearrested. In fact, only 2% of those released without bail were re-arrested for violent felonies. This number is slightly lower than those re-arrested for violent felonies after posting bail.  

  • In New York City, those out on bail have a consistent rearrest rate of approximately 5% for violent felonies--more than double the rearrest rate of those for whom bail wasn’t set. The data is clear: bail reduces freedom, not crime.  

  • We can look to national trends, particularly in Republican controlled districts, where some of the steepest bail laws have done very little to curtail the crime rate.  

  • In a report compiled by the Major Cities Chiefs Association, out of the 66 largest police jurisdictions, 63 saw an increase in at least one category of violent crimes in 2020. A majority of these cities had not passed reforms that would have eliminated bail.1 

  • New York is not alone in our stance. For the last thirty years, major cities and states have been implementing sweeping bail measures, with Washington DC and New Mexico heavily limiting the practice, New Jersey eliminating it in 2017, Alaska in 2018, and Illinois will follow suit in 2023.2 

  • In 2020, the Prison Policy Initiative investigated 13 jurisdictions that implemented pretrial reforms–including DC and NJ–and discovered that "All but one of these jurisdictions saw decreases or negligible increases in crime after implementing reforms." 

  • Repeated arrests are bail eligible. Individuals who commit a new felony or Class A misdemeanor while out on release for another felony or Class A misdemeanor can have bail set on their second crime when both crimes involved harm to a person or property. 

  • This captures non-bail eligible offenses and allows them to become bail eligible if an individual repeats harmful conduct towards a person or property.