Bail reform has long been hotly debated in New York – and was finally passed in 2019, taking effect on Jan. 1. Less than a month into its infancy, the new legislation is once again being hotly debated, with supporters and detractors offering widely divergent perspectives on its current and likely future impact.
The bail reform legislation ends cash bail in most misdemeanor and non-violent felony cases. It is designed to reduce reliance on money in the form of cash bail as a determinant of whether many defendants—charged but not convicted—remain in custody prior to disposition of their criminal cases.
Advocates of the legislation argue that bail has historically discriminated against low-income defendants—detaining thousands in jails across the state on relatively low bail, often on relatively minor charges, because they are unable to come up with the required bail amounts—while those with financial means are able to effect their release by making bail on similar—or in many cases even more serious—criminal charges. People of color have also historically been significantly more likely than other defendants to be detained on bail prior to their cases being adjudicated.
But as the bail reform legislation has taken effect, detractors statewide have been visible and forceful in their denunciation of the law. In particular, many county district attorneys, law enforcement officials and legislators have railed against the law and its unintended consequences. While often acknowledging the commendable goal of the legislation to make the criminal justice system more equitable, they have criticized the new law for releasing defendants they consider dangerous back into the community without adequate protections for public safety. In particular, they argue, among other things, that certain hate crimes and other crimes that involve such charges as assault and aggravated harassment should be subject to having bail set, rather than excluded under the current legislation.
The debate will play out over the coming weeks in Albany, as some elected state officials are beginning to suggest that changes in the legislation may be needed. In the meantime, it may be useful to put the issue of bail reform and related issues of incarceration in the context of recent research, policy analyses and criminal justice reforms discussed and implemented in Tompkins County, a county in central New York with a population of about 105,000. Its county seat is Ithaca.
Jail overcrowding in Tompkins County prompts study
As the county jail’s daily inmate population frequently exceeded its official capacity of 82 beds—and facing pressure from the state Commission of Correction to either significantly reduce the daily jail census, expand the current facility, or build a new jail—Tompkins County initiated a comprehensive assessment of arrest and jail census trends and of existing criminal justice system practices, programs and policies. It engaged the Center for Governmental Research to undertake the assessment and provide the county’s legislature with the data, perspective and recommendations needed to make informed decisions about the future of the jail and the overall criminal justice system. The study was completed in mid-2017.
The analyses identified a wide range of actions Tompkins County could take to dramatically improve aspects of the overall criminal justice system and significantly reduce the number of inmates in the county jail. The county already had some promising initiatives in place or under consideration, and was amenable to recommendations that built on that foundation, challenged some existing practices and assumptions, and outlined new and in some cases controversial programs and policies.
Bail reform is key recommendation
The presumption of non-financial release in most cases, including most misdemeanors and non-violent felonies, was among the most important recommendations made to the district attorney, judicial officials and the local Pre-Trial Release agency. This change was implemented by Tompkins County some two years ahead of the bail reform legislation subsequently passed by the state Legislature.
This recommendation was less controversial in Tompkins County than it would likely have been in many other counties, due to support for the general concept from the newly-elected incoming district attorney and a recommendation included in a 2016 county municipal courts task force report. Expansion of non-financial release was instrumental in helping to eliminate from the jail substantial numbers of inmates previously incarcerated pre-adjudication on minor charges. Although bail may have been set relatively low, it nevertheless could not be met in many instances.
Reduced reliance on cash bail in context of comprehensive reforms
Reducing the reliance on bail helped pave the way for other recommendations to be implemented. Among those were a number of actions the existing Pre-Trial Release program could take to expand its impact, including more aggressive release recommendations to the courts and more effective monitoring practices for defendants released to its supervision while awaiting disposition of their cases.
Other recommendations from the study included expanded selected use of electronic monitoring; expanded assessments of inmates for substance abuse, with expedited access to residential rehab treatment; creation of a medical detox unit; expansion of misdemeanor drug court; and strengthening of re-entry programs to help facilitate the return of ex-inmates back to the community with various supports in place, thereby helping to reduce future recidivism.
Tompkins jail census drops by one third to one half
Based on such recommendations, the study forecast a reduction by 2020 of at least 29 inmates per night from previous jail census levels, resulting in a projected average of no more than 54 and perhaps as few as 46 occupied beds per night in the jail. The sheriff and others in the county were excited at the possibility, though in many cases dubious that such an outcome was possible, especially within such a short time. But the reality is that a year ahead of the projections, the anticipated reductions were met or even exceeded. Well before the effects of statewide bail reform had occurred in other counties, during the latter months of 2019 the daily census in the Tompkins jail had settled into the low 50s on most nights, and even into the mid- to low-40s on a number of occasions. This is a tribute to the leadership of county officials who carefully analyzed the study’s conclusions and their implications, and were willing to make the investments needed to make these outcomes a reality.
Not every county in New York will be able to replicate all the actions taken by Tompkins. But its experience indicates that there are viable opportunities that most counties will be able to offer, at least to some degree, on their own or in collaboration with other partners, to help make bail reform and presumptive non-financial release feasible, consistent with protections for community safety.
Preliminary figures suggest public safety has not been compromised
The early returns from Tompkins County suggest that the increased reliance on non-financial release and the reduction in numbers of people detained in jail have not resulted in increases in crime that many opponents of the current state bail reform legislation have forecast. Data for 2019 are not yet available, but arrest data from 2017 and 2018—the first two years in office for the new district attorney and his reduced emphasis on recommending bail to judicial officials, and encompassing the initial years of the county’s response to the jail study’s recommendations—are promising. Not only have arrests not increased, as some had feared, but they have declined substantially during each of those years.
Total arrests in 2018 in Tompkins County were down 19 percent from the 2016 totals—a decline of 17 percent in felony arrests and almost 20 percent in arrests on misdemeanor charges. It will be important to monitor 2019 data when they are tabulated and become available within the next couple months. But what we know now suggests that bail reform—accompanied by effective alternative-to-incarceration programs and policies aimed at those who would otherwise have been detained in jail while awaiting adjudication of their cases—can have its desired effect without compromising public safety.
Don Pryor is principal, human services analysis, with the Center for Governmental Research.