Flawed bail reform data can still chart path forward

The recent release by New York courts of bail data following the 2020 implementation of controversial reforms has some politicians working overtime to roll back these historic changes. With a spike in crime and higher rearrest rates, they cite the data as evidence that bail reform has made New York cities and towns less safe.

But the public and policymakers must understand that the new data is significantly flawed for two reasons: COVID-19 and the increasingly deteriorating conditions at New York City’s Rikers Island jail. These factors overlap with the data’s time frame, and, during acute waves of the pandemic, they had judges releasing, without bail, unprecedented numbers of people charged with gun crimes and violent felonies. These releases were not due to bail reform. Rather, they were driven by public health concerns and from untenable conditions at Rikers.

Even with this problem in the data, however, a responsible path forward still emerges from the information to improve our bail system, enhance public safety and maintain bail reform’s important achievements.

For instance, creating robust supervised release programs was a central tenet of bail reform. In New York City, former Mayor Bill de Blasio created five social services agencies, one in each borough. In Gov. Kathy Hochul’s hometown of Buffalo, the Erie County Probation Department expanded to manage pretrial supervision.

Unfortunately, no matter the approach, supervised release programs have never received the funds equal to the task. The result is that approximately 40 percent of people on supervised release are rearrested, including 1.5 percent for violent felonies. Hochul’s recent decision to add another $10 million to the effort clearly is not enough. Until policymakers make a sustained and substantial financial commitment to pretrial release programs, pretrial supervision will remain the Achilles heel of bail reform.

The current bail data, even with its limitations, demands a deep review of individual judicial practices. To that end, the court system has started using the data to map judicial practices and provide better feedback about bail decisions. Previously, reviews of an individual judge’s bail decision were limited to cases highlighted in the media. The new data, and the efforts by the courts to work with this information, have given us a first glimpse of how judges can evaluate past bail decisions, including the outcomes of those decisions, to better guide future actions. To enhance that effort, Albany should also mandate gathering data on bail requests by prosecutors to assess whether their recommendations drove the judge’s decision.

Albany has given a cool reception to calls to amend the bail law so judges can detain individuals they believe are dangerous. The Legislature understands how profoundly the old bail statute destroyed lives of many individuals incarcerated pretrial — overwhelmingly poor Black or brown people. Critics overlook that New York’s new bail law already accounts for dangerousness. There is a lengthy list of violent felonies and other bail-eligible offenses set by the Legislature, including for many assaults, robberies, sex crimes, and burglaries. Expanding the list, along with many other gun control initiatives now under discussion by President Joe Biden, Hochul and New York City Mayor Eric Adams, can help address the current epidemic proliferation of out-of-state guns through the Iron Pipeline.

Similarly, lawmakers can consider creating a “recalcitrant misdemeanant” category, setting bail when individuals have multiple open misdemeanor cases. This approach will help stop the arrest-to-release merry-go-round that gives the perception of a breakdown in public safety.

Apart from the bail data, policymakers should also study the precipitous drop in arrests since 2019, and how that drop impacted bail reform and crime rates. At the University of Chicago, academics previously documented rising crime rates during contentious NYPD labor negotiations in the 1990s and early 2000s. Statewide year-to-date felonies and other cases in the state’s higher courts (through October 2021) dropped from 30,334 cases in 2019 to 12,576 cases in 2020 (60 percent lower), and 22,490 cases in 2021 (another 25 percent drop). Policymakers must understand whether, as in the past, these lower numbers reflect another labor action that is impacting crime rates and our assessment of bail reform.

Because the cost of incarcerating someone on Riker’s exceeds $300,000 per year — a cost higher than anywhere else in the country — the public and policymakers need to carefully choose the best path forward on bail reform. Accounting for the recent abnormal levels of release driven by COVID-19 and bad conditions at Rikers, a careful and reasoned evaluation of the data is critical to assessing the bail reform law’s effectiveness. Then, charting a path forward by using the data responsibly will better balance public safety and equal justice.