July 25, 2021

Data muddles debate on bail changes in New York

Data muddles debate on bail changes in New York


ALBANY — About a sixth of the criminal cases that went before a judge in New York in 2020 led to the person being rearrested before the case concluded, according to new data from the state’s court system, which was mandated to be collected after the Legislature passed controversial bail refinements a year earlier. 

That number, nearly 31,000 people out of more than 184,000 cases last year in New York, is underpinning the current concerns over gun violence its connection to the bail changes, some of which were rolled back last year.  It is an often polarizing debate that is likely to only get louder as the political campaign season heats up.

The specific data, which the state was directed to collect by the Legislature, includes whether someone was rearrested, when it happened, but not what they were charged with upon the second arrest, a data point that could be useful in defusing some of the charged political discourse. 

The review of the data comes following Senate Minority Leader Rob Ortt’s recent call for the state to collect, review and report back on whether, as the  North Tonawanda Republican asserts, bail reform is to blame for the increase in gun violence. The renewed conversation around bail reform comes on a feverish 2022 campaign season, punctuated by a race for governor that is already, in part, being framed around a conversation on crime.

In interviews with the Times Union last week, people on various sides of the bail debate noted that the data itself, although extremely thorough in what it does collect, stops short of giving enough nuance to allow researchers and politicians to say just how many shootings or gun possession crimes were committed after someone was released from custody for another crime.

Additional data, like rearrest charges, were generally welcomed by both bail-change advocates and opponents, but advocates cautioned that the extra data, while it may be helpful, could easily be manipulated to portray a negative, and, more so, a distracting portrait of the changes to bail laws. Critics were more welcoming of the additional data point, contending it would show the issues bail “reform” has caused, although there is limited to no similar data to show what were the prior standards.

Absent of a concrete, independent number that can say gun violence crimes associated with people who were released on bail that previously would not have without the law changes, people on both sides point to their respective share of facts and anecdotes. Advocates note the rise in gun violence across the nation during COVID-19 and opponents point to cases that show violent crimes that previously would not have happened if a person had remained in custody.

Advocates and criminal justice researchers often note it is essential to the debate to first highlight the underlining goal of the bail changes: to afford equal opportunities for people, regardless of economic status, to not sit behind bars awaiting adjudication of their cases, while assumed innocent until proven guilty. More equity in bail policies could mean less trauma, like financial, social and health, to people who are poor, which, in New York, often overlays with people of color. Advocates who support the changes argue they are one piece toward rooting out systemic flaws in society that cause racial disparities and upend the stability of families.

Critics of the policies point to what they say was overly broad legislation that included mandatory release — or low cash bail — for crimes considered violent. Condition of release may include maintaining or seeking employment and housing, or electriconic monitoring, which may be key to preventing gun violence. The opponents say the concept is fundamentally wrong and should be rescinded immediately so that the state is immediately safer, an argument oftentimes tinged with politics. 

What does the data say?

Criminal justice data in the first full year, which, albeit came during a pandemic that upended many societal trends and norms, shows how often people returned to court after being granted a certain type of bail. They often made their court appearances, which is a primary objective of bail.

The data shows racial disparities on who was afforded reduced or no bail, which some advocates say in fact have gotten worse under the changes. It also shows racial disparities in not only who is being charged and convicted with crimes, but also who is rearrested before case case was adjudicated — not all of which shows the same trend.

While 41 percent of the 184,000 cases that went before a judge involved people who are Black, more than half of the people rearrested were Black, according to a Times Union analysis of the data.


In just a handful of rape or other sex offense cases that led to rearrest, about 200, they were overwhelmingly by people who are Black, although people who are white committed a greater share of those crimes. People who are white, who were arraigned on criminal possession of weapon, saw their share of rearrests go up relative to people who are Black.

Several criminal justice groups are studying the data over several months, looking to come away with more granular conclusions. In the data set from the state’s Office of Court Administration and Division of Criminal Justice Services, it includes 1,313 different charges with which people were arraigned and is further broken into 20 categories, including homicide, robbery and driving while intoxicated.

The politics of data

Ortt, in a statement to the Times Union, said the data was not detailed enough to sort by offenses that fall under the dense laws prescribed under the 2019 bail changes. Many of those offenses are available to be viewed through the state’s data file, but it would require sorting through more than a thousand types of crimes and figuring out which are bail eligible.  

“The key data point we need is how many offenders commit offenses that are now not eligible for bail (to be set) and then go on to reoffend while awaiting trial,” Ortt said. 

The court administration’s spokesman said their office is reviewing Ortt’s request. DCJS, through a spokeswoman, pointed to the increase in gun crimes across the country, the coroanvrius pandemic’s stresses on mental health, finances and isolation that is causing a reduction in social services typically used to mitigate crime. 

“Pointing solely to bail reform as a reason ignores the complex, confluence of factors,” said Janine Kava, a DCJS spokeswoman. 

The Republican Party has routinely railed against bail law changes, both in and out of the halls of the Capitol. U.S. Rep. Lee Zeldin, a Long Island Republican, and the GOP’s “presumptive nominee” for governor, has focused his rhetoric on a tough-on-crime approach. He jockeys that he is the governor for a safe New York.

Meanwhile, Gov. Andrew M. Cuomo, who was outraised for the first time while governor, recently pivoted to a focus on gun violence. On July 5, he declared gun violence a state of emergency and said the state would focus its attention and resources to it in a similar way it did to COVID-19, an issue for which his leadership received accolades but now is the subject of multiple investigations. 

He recently appeared in Brooklyn with lawmakers who previously called for his resignation, but they stood side-by-side with him to say they were tackling the epidemic of gun violence. Cuomo appeared with the Democratic nominee for mayor in New York, Brooklyn Borough President Eric Adams, a former police captain, who secured the vote of Black communities in the city, where they say their top issue is violence.

“Instead of trying to just cast blame on bail reform for political reasons, I think people need to look at a holistic view, what’s happening in communities and too many guns and access to guns,” Assembly Speaker Carl E. Heastie said. The conversation should be around social issues plaguing poor communities and how to financially support those places, he said, “instead of playing the political blame because next year is an election year and you think this is something that you can use.”

Views from those most involved 

Albany County District Attorney David Soares, a Democrat, had a different perspective, based on the cases he’s been seeing through his door over the last 19 months since bail changes were made.

“I’m so exhausted of people blaming COVID for the rise in gun violence,” Soares said.

He noted that before 2019, New York was the largest safe state in the country and New York has not recently seen the same issues seen in places like Baltimore, Los Angeles and Chicago.

Soares ran through a scenario of a person who shoots someone on Friday, and under bail reform, may be released and out on the street on Saturday. He said the person who was targeted may now try to acquire a gun to protect themselves because they may feel they are “better off being caught by the police” than “being caught empty-handed by the person who took a shot at me on Friday.'”

“So the people who are saying things like COVID, you do not understand the streets. That’s not conservative, that’s not liberal, that’s not Democrat, that’s not Republican. You do not understand the streets and street culture and how violence works on the street,” Soares said. “We have people who are 22, 23 years old, who have never been charged with any crime, no criminal history, but all of a sudden they are being apprehended and charged with possession of a firearm. Why do you think that is?”

Soares called the bail measures of 2019 well-intentioned from people who want to see meaningful changes, but done in a way that has caused serious issues, many of which, based on his own internal information, have disproportionately hurt Black and brown communities.

He compared it to “another group of well-intended legislators who came to power” in the 1970s, when they passed what’s known as the Rockefeller drug laws, which Soares said were also overly broad. 

“It devastated Black and brown communities. We went back and undid that,” Soares said. Today’s legislators, who came to power under a Democratic super majority, “have made the same mistake.” 

Some advocates noted that bail changes have in fact led to disproportionate disparities among minority communities. The issue, though, is more in the fact that watchdogs have seen many judges not following the letter of the law in offering affordable bail options to Black people. Others say it has exposed the systemic issues in communities that should have an equal, if not greater, focus from lawmakers. 

For example, releasing a poor person to a poor community that is already afflicted with violence, could set someone up for a difficult situation. Soares said he wouldn’t have an issue with the bail changes if they removed certain violent crimes that were included in the legislation and gave judges more discretion. If it was limited to misdemeanors and non-violent felony charges, the issues seen in communities, particularly around spikes in gun violence, could be less acute.

“The rise in gun violence should not be seen as a reason to slow down the reform movement,” said Laruen-Brooke Eisen, director of the justice program at the Brennan Center for Justice in New York. “But it should be seen as a reason to reduce sentences and cut back on the punitive powers of the state. This is a call to continue to care about young people, care about communities.” 

Eisen said her research showed violence was beginning to creep up in 2019, prior to bail changes or the pandemic.

Eisen, like others, including Soares, noted that the Legislature’s call for overhauling the bail system came with unfunded mandates and half-fixes. The changes without providing more access to good-paying jobs and reliable housing can short circuit the efforts and the positive results seen from them, the advocates said. 

“It would be a mistake to double-down on the punitive policies of the past, when the evidence shows that those policies don’t work” Eisen said. “Use today as an opportunity to say there are ways to increase public safety, to keep the public safe. There are ways to hold people accountable for creating harm, without creaming more harm.” 

Advocates for the bail changes have focused on the need to keep the conversation centered on ensuring it is not only the wealthy that are afforded an opportunity to spend their pretrial time outside of a jail cell. The purpose of bail, they note, is to ensure a person returns back to court. 

People are turning to court at a higher rate, said Jared Trujillo, policy counsel for New York Civil Liberties Union. Part of it is the incentives to avoid going to jail, even before convicted of a crime, because it could mean losing a job, housing, childcare or immigration status.

“Even 24 hours waiting to see an arraignment judge can ruin your life in real, tangible ways,” Trujillo said, pointing the conversation back to the goals and intent of bail changes.”I’m not going to pretend the legislation that passed is the panacea, because it’s not. But at the end of the day, as far as reducing some of those inequities, as far as actually incentivizing people to go back to court, it certainly does that.”

Trujillo looks at the strong, politicized statements the New York Police Department and its unionized officers have released on bail reform, which disparages it and highly associates it with the spike in gun crime as “inaccuracies” and “frankly blatant dishonesty.” 

Vera Institute of Justice was founded upon a mission of reforming inequities in bail reform, which it calls an issue of racial justice and poverty. New York’s bail changes, while imperfect, have reduced the number of people held in pretrial cases, said Jullian Harris-Calvin, program director in New York for the institute. The racial disparities in court have continued though.

It’s a question instead on the deployment of police and how law enforcement chooses to enforce. The focus of lawmakers, Harris-Calvin said, can also be on community-based, public health response. It’s an issue that should think about how putting people in prison can disrupt nuclear families and lead to intergenerational poverty, she said, something that is more complex than increasing public safety tomorrow and seeing crime numbers reduce the next day.

“That’s a harder response, right?” Harris-Calvin said. “All of these intellectual, academic conversations around what works and the complexities of social networks and social safety nets — nobody wants to talks about that in a sound bite.”



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