New York’s Bail Laws, Reconsidered: 5 Things to Know

The most divisive issue in Albany is hardly a new one.

In 2019, New York changed its laws so that fewer people arrested would languish in jail because they could not afford bail. A backlash led to a series of tweaks intended to toughen the law. Soon after, a pandemic-era rise in gun crime began.

Gov. Kathy Hochul has now proposed a broad set of alterations to the state’s bail laws in her budget that would expand judicial discretion and effectively increase the number of crimes eligible for bail. The proposals have made many Democratic lawmakers furious: Assemblywoman Latrice Walker of Brooklyn is on a hunger strike to protest the governor’s plan.

Ms. Hochul has sought to portray her changes as targeted fixes rather than a full rollback. “Blaming bail reform for the increase in violence that cities across America are facing isn’t fair and isn’t supported by the data,” she said in an op-ed published in The Daily News and co-written with her lieutenant governor, Brian Benjamin. Nonetheless, the two leaders said, the laws still needed changing

They cited rates of repeated offenses that they said were unacceptable, adding: “These repeat offender rates were a failure before bail reform, and they remain a failure today.”

The question of whether to revisit bail reforms has consumed the political conversations around crime for months, overshadowing negotiations over the state budget as the April 1 deadline approaches. Here is a look at some key issues and questions.

A quick primer on how bail works in New York.

Judges in criminal court have three options: They can set bail; they can order that defendants be released without bail; or they can order them to be detained. When bail is set, those who can pay are released to await trial; those who cannot remain in jail. Once a case reaches its conclusion, bail money is returned.

In New York, unlike every other state, judges can only use bail as a tool to ensure that defendants return to court. They cannot take into consideration the harm a defendant may pose to others.

By the time the 2019 changes went into effect, New York City had already seen a marked decline in the use of cash bail. Between 1987 and 2020, a period in which crime plummeted in New York, the rate at which bail was set fell by 32 percent, according to a report by the New York City Criminal Justice Agency.

The 2019 bail law was built on a new approach: Judicial discretion was tightly controlled, and the ability to set bail was limited to a smaller range of crimes, most of them violent felonies. In addition, judges were instructed to consider a defendant’s ability to pay bail and choose the “least restrictive” means to ensure their return to court.

How did the 2019 changes to bail laws affect New York?

It’s a difficult question to answer. During the pandemic, gun violence went up in cities around the country, and researchers say that it is hard to assess the impact of New York State’s bail laws in isolation. Data from New York City offers a mixed picture.

Overall, the rate of those who have been rearrested while they are awaiting trial has been largely unaffected by the changes in the law, according to data from the New York…