New NY Bail Law Stirs Controversy

New NY Bail Law Stirs Controversy

In an era of increasingly bipartisan consensus that criminal justice reform is necessary, recently enacted New York bail reform has become a lightning rod for criticism and controversy. The New York law, which went into effect on January 1, prohibits the imposition of bail for all but the most serious crimes. These crimes, which now require defendants to be released on their own recognizance pending trial, include grand larceny, many burglaries and robberies and even involuntary manslaughter.[1]

According to many, the bill reform law has already led to increases in crime and anecdotes of defendants being released and committing more crimes abound in the media.[2]

In discussing the law, we first need to understand the purpose of bail. Bail is typically a pretrial device and so is relevant to people who haven’t been convicted.[3] Therefore, it would be incongruous (and unconstitutional) to use bail or pretrial detention as a method to punish the defendant. Moreover, the eighth amendment to the United States Constitution prohibits “excessive” bail. According to the American Bar Association, in assessing bail, the judge may consider the risk of the defendant fleeing, the type of crime alleged and the danger to the community that the defendant would pose if released.[4]

Criticism of the bail system is decades-old and is based on the idea that it punishes lack of wealth. People who can afford to make bail are typically free pending trial in almost all cases except first-degree murder charges, where defendants are usually held without bail. People without means or support structure to make bail, on the other hand, may be held for months on minor drug or pickpocketing charges. Moreover, bail systems are often accused of racial bias in that they typically impact minorities on a disproportionate level.[5] Some states even use predictive algorithms to assign bail based on likelihood that the defendant will commit more crimes, bringing further allegations that these algorithms result in racial bias.

In supporting bill reform, New York Governor Andrew Cuomo observed “The blunt ugly reality is that too often, if you can make bail, you are set free, and if you are too poor to make bail, you are punished.” One California court even went so far as to call “affordable” bail a constitutional right.[6]

Predictably, the reform law has had consequences. New York City’s police Commissioner has overtly blamed the bail law for an increase of almost 17% in serious crimes in New York City in January.[7] The New York Post observed that a single defendant is alleged to have committed three hate crimes in a couple of weeks, but that the bail law required in each case that she be released without bail.[8] Multiple New York criminal law judges have been quoted as observing that their courtrooms and dockets are fuller than ever since the onset of 2020.  

On the other hand, talk about rolling back the bail reform has met fierce resistance. A proposal by New York Senate Majority Leader Andrea Stewart-Cousins to give judges more discretion over who is released before trial was derided by one lawmaker as a “Jim Crow” style rollback of civil rights.[9]

With New York under single party control and with the general backlash that accompanies any potential restriction of civil rights, bill reform seems an experiment that is going to have to run its course until a large enough data set to study its results is produced. In the meantime, criminal justice reform advocates and opponents around the country are paying close attention.