Law & the Courts

New York’s Bad Bail-Reform Law

An NYPD officer arrests a demonstrator during May Day rallies in New York City in 2013. (Shannon Stapleton/Reuters)
Top-down, arbitrary decision-making by state government simply won’t work.

2020 is going to be a very good year in New York State — for criminals. As of January 1, the state’s new criminal-justice reforms took effect, including a law that compels judges to free thousands of arrested defendants, many of whom have committed violent crimes or are serious flight risks. The goal is to reduce incarceration in jails, but the methods are arbitrary and put the public at risk.

The new law prohibits arraignment judges (the ones that handle an arrested person’s first court appearance) from demanding bail for certain defendants or remanding them to jail. Instead, they must release the defendant on his own recognizance (ROR). This release order supposedly does not apply to violent felony offenders. However, numerous crimes of violence or potential violence are found among the state’s so-called nonviolent felonies, including certain robberies, rapes, and assaults. And judges in New York — unlike judges in 46 other states — may not take public safety into account when deciding whether or not to release someone.

While New York law directs arraignment judges to focus on the likelihood of return when ruling on release, it does not provide for an assessment of the risk of nonappearance. This is especially puzzling, as the New York City Criminal Justice Agency (CJA), which screens virtually every arrested person in the city, provides a fairly accurate assessment of the risk of release. Where CJA recommended release only 7 percent of the discharged defendants failed to appear. That’s a 93 percent success rate.

Instead of encouraging judges to follow CJA recommendations the new law establishes rigid categories based on the type of crime committed. So defendants accused of crimes labeled violent felony offenses (VFOs), with exceptions, remain eligible for bail or jail. However, misdemeanants and those deemed nonviolent felons — even if actually violent or high flight risks — must be released.

Why structure the law this way? Probably to head off public outrage if the most obviously violent felons, VFOs, had to be compulsorily released. But if public safety were the main concern then why not let judges make release decisions on a case-by-case basis, and why not let them take dangerousness into account the way judges do in nearly every other state? On the other hand, if promoting court appearances is the goal then why exempt violent felons from the release edict? The data show (anomalous as it may seem) that violent felons are among the least likely to abscond.

What will be the impact of the new law? Most obviously, thousands of offenders who would have been admitted to bail or remanded to jail before the reforms will now be released. Among those arrested for misdemeanors the effect may be small in percentage terms, but big in absolute numbers. In 2018, before the law went into effect, 87 percent of New York City misdemeanor arrestees were released. Presumably, the remaining 13 percent will be ROR’d as the law takes effect. In sheer numbers this will be significant since misdemeanors represent nearly three-quarters of all arraigned cases. Judging by data from recent years, we could see an additional 23,400 misdemeanants released in 2020. And that number is for the Big Apple alone; it doesn’t include the thousands of upstate offenders.

The second biggest impact will be on the so-called nonviolent felons. Forty-five percent of such defendants in New York City were admitted to bail or remanded to jail in 2018. The new law changes this. The statute prohibits judges from demanding bail for nonviolent felony defendants or sending them to jail, even though their crimes may be serious, and even if they have records of numerous failures to show up for their court dates. Going by past figures we are speaking of roughly 12,000 felony arrestees who would have been jailed or released on bail under the old rules.

The no-bail-or-jail rules do not apply to certain “qualifying offenses,” including most of the crimes identified in the New York Penal Law as violent felony offenses (VFOs). But even here there are exceptions written into the new law, notably for certain second-degree robberies and burglaries.

Worse still, I found at least 25 felonies that are violent or create the potential for violence but are nevertheless exempt from the bail or jail option because they are not VFOs. These include certain aggravated assaults on a child, aggravated harassments, prisoner escapes, rapes, riots, robberies, and vehicular manslaughters. If public safety were uppermost in the minds of reformers, judges would be empowered to impose bail or jail in each of these crimes — to say nothing of the dozens of violent misdemeanors not listed among the 25.

It is true that defendants who have been arrested but not yet convicted should not be punished. It is also true that without some security — cash deposits, bail, or jail — many thousands of these defendants will never show up for their day in court, and some will commit additional crimes once freed. The balance between individual rights and public safety is best achieved by letting the judges determine on a case-by-case basis who is a flight risk or a danger to the public and helping them make this determination through data-based assessments. Top-down, arbitrary decision-making by state government simply won’t work.

Barry Latzer is an emeritus professor at John Jay College of Criminal Justice, CUNY. His most recent book is The Rise and Fall of Violent Crime in America. His history of violent crime pre-1940, The Roots of Violent Crime in America: From the Gilded Age through the Great Depression, will be published in 2021.


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