By Steven Yoder, TheAppeal.org
Before New York State’s bail reform law passed in April 2019, police, sheriffs, and prosecutors warned of dire consequences.
“I think that it could cause some havoc,” said Kristyna Mills, Jefferson County’s district attorney. Jim VanBrederode, police chief in the town of Gates, warned that without bail, those arrested wouldn’t have a reason to show up in court. And Patrick Phelan, police chief of the town of Greece, said bail reform would mean “dangerous criminals” would be “arrested and then immediately released.”
Once the law took effect on Jan. 1, law enforcement groups spent weeks serving as sources for sensational media stories about people allegedly committing crimes after being released pretrial.
So when polls showing support for the new law began dropping, New York legislators and Governor Andrew Cuomo took action: They rolled back the law, amending it to allow new crimes to be bail eligible. That rollback, relative to the original law, will increase New York City’s pretrial jail population by an estimated 16 percent, and similar effects are likely in the rest of the state, according to an analysis by the Center for Court Innovation.
Bail reform advocates say the anti-bail media blitz was successful in part because of a flaw in the original law: It did not require courts and prosecutors to report data—like rearrest rates, failure to appear rates, and case outcomes—which could have helped reform proponents push back and show that the law was effective, said Insha Rahman of the Vera Institute of Justice.
For example, after New Jersey passed bail reform in 2017, the percentage of defendants charged with a new offense while on pretrial release rose only slightly, according to an April 2019 report by the state’s court system. Defendants showed up for more than 89 percent of their pretrial court appearances post-reform, the report found.
Although New York’s amended bail law now requires that data be collected, it won’t be publicly available until July 2021.
“When the rollback went into effect, the bone that was tossed to advocates was that … we’ll actually do data collection,” said Rahman. But the amended law has no monthly reporting requirements, she added.
That also means there is no real-time data that shows whether judges are applying the law properly and fairly. The Center for Court Innovation report notes that the organization’s projected jump in jail populations could increase, as “judges may engage in more inclusive interpretations regarding who is bail eligible.”
“Data collection is very important to understanding whether or not the new law is being implemented correctly,” said Taryn Merkl of the Brennan Center for Justice, “particularly now in the time of COVID-19 when we can’t really send court watchers into court as much as we might have been able to do previously.”
Judges in New York City courts were already flouting parts of the law in January, according to Court Watch NYC, a project run by three groups that puts volunteer monitors in the city’s courts. For example, the statute requires judges to consider an accused person’s ability to pay before setting bail. But in three-quarters of the 937 arraignments that city court watchers monitored between Jan. 1 and March 10, court watchers didn’t hear judges ask about ability to pay, the group said in a recent report.
“Given our findings … we have every reason to believe that judges and prosecutors will exploit the expanded discretion granted to them by the rollbacks to incarcerate thousands more Black and brown people in the process,” it concluded.
Judges across the state have also imposed bail for charges that are not bail eligible. On Jan. 9, Nassau County District Judge David McAndrews set $10,000 bail for a man arrested for allegedly giving two bank tellers notes that claimed he had a gun. His charge, third-degree robbery, is not bail eligible under the current law.
In another case, Cohoes City Court Judge Thomas Marcelle set $100 bail for a motorist accused of driving with a suspended license, a low-level misdemeanor also ineligible for bail under the reform law. “By stripping judges of necessary discretion to control the appearance of a defendant, the legislature improperly interfered with the judiciary’s capacity to fulfill its constitutional mandate,” Marcelle said in his order.
The state’s Commission on Judicial Conduct said in a March report that a judge “who purposefully fails to abide by the [bail reform] law, e.g. to make a political point or because s/he personally disagrees with the law, invites discipline.” But data that could reveal if judges should be subject to that discipline will not be available for months under the new bail law.
We have every reason to believe that judges and prosecutors will exploit the expanded discretion granted to them by the rollbacks.
-Court Watch NYC, July 2020 report
New York’s almost 1,300 town and village courts will be especially difficult to monitor because of how they are set up. Often tiny, sometimes located in town hall basements, they deal mostly with minor offenses but also arraign felonies and handle misdemeanors. More than 60 percent of their judges have no law degrees; two years of college is the minimum requirement. And they’re overseen by each town or village itself, with the state exercising no direct control.
A report last April by the Fund for Modern Courts, a nonprofit advocate for reform and improvement in New York’s court system, charged that at least some of their judges use jail time to force poor people into paying fines they can’t afford. Ten of the 13 judges disciplined by the Commission on Judicial Conduct last year were town or village justices.
Court watchers won’t have much luck checking on how judges are handling bail reform in some of these courts. In court sessions last summer in the municipalities of Colonie and Oswegatchie, judges conducted negotiations right in front of the bench with no microphones, making proceedings inaudible even from the first row. Asked about the audio issue last summer, Colonie Town Justice Peter Crummey said he makes special seating arrangements when he knows ahead of time that court visitors want to hear the proceedings.
There is also a fear that town and village courts might not collect any data because the amended law includes no money for the task. “Without funding and training, it’s hard to imagine how many of the smaller jurisdictions will develop the systems and expertise necessary to collect the data and report it out accurately, particularly now that towns and cities face budget cuts,” said Merkl.
The delay in getting data also leaves an opening for another effort to overturn even the amended law. Already the state’s Association of Chiefs of Police, Sheriff’s’ Association, and Assembly Republicans have denounced the weakened version, calling it and other reforms passed in June a “revolving door for career criminals” at a July 11 event.
“It’s always been true that the benefits of freedom don’t generally don’t make it into the press,” says Jocelyn Simonson, a professor at Brooklyn Law School. What doesn’t make headlines, she says, are “homes and neighborhoods that are actually safer because people are free to go to work, take care of their kids, and be less likely to harm other people in the future because they haven’t spent time in a violent place like jail.”
New Jersey shows what solid data can achieve, Rahman noted. The state courts report from April 2019 showed there were 6,000 fewer people in New Jersey jails. But defendants were no more likely to commit a new offense or fail to show up for court appearance than before.
That report may have taken the air out of efforts to roll back the reform. Nine bills were introduced to the state legislature in the 2018-19 session that would have increased the use of bail, an informal count shows. By the 2020-21 session, that number fell to two.
“New Jersey was in some ways able to weather the backlash,” said Rahman. “They had real-time data that was ready to go. It was centralized. Nobody was doubting its veracity. And that made a huge difference in being able to push back against the same kinds of forces that we saw here in New York.”
In other states, bail reform is inching forward. Last year, Colorado eliminated cash bail for certain low-level offenses. But a bill this year that would have broadened pretrial release in the state died in the legislature. The Missouri Supreme Court instituted new bail rules starting in July 2019 that require state courts to impose bail only if necessary for safety reasons.
Conversely in California, a ballot initiative sponsored by the for-profit bail bond industry is on the ballot in November—if passed it would overturn the state’s law ending money bail.