The Price of Freedom Part 3: Freedom from Fear of Crime

Room 130 of the New York County Criminal Court is about the size of a middle school auditorium, but lacks the splendor of Surrogate’s Court and other monuments to justice in Manhattan. The prewar art deco building at 100 Centre St. is showing its age. Old murals line some of its walls and the solid wooden doors are heavy enough to allow a regular visitor to give up a gym membership.

Room 130, and rooms like it throughout the city, are the defendant’s first stop after getting arrested. It is here that a defendant is formally charged and then one of two things happens. The first pathway is that the accused is released. This can happen because bail has been set and the defendant can pay it, or in rare instances, because the judge throws out the case. The alleged crime may also be ineligible for bail under the 2019 bail reform law—though the judge may set other parameters for release, such as attending a treatment program.

The second pathway is that the accused is remanded. This could be because the judge fears the person will not return to court. It could also be because bail has been set in the case but the defendant cannot pay the amount set. As a result, the accused—who has not yet been convicted of a crime—must wait in jail, often on Rikers Island, until the person pleads guilty, the case is dismissed, or until the person goes to trial and is found not guilty, a process that can take years.

Before bail reform passed in 2019, tens of thousands of New Yorkers each year fell into this last group, often after being accused of misdemeanor crimes like stealing food from a bodega or buying, selling or being in possession of small amounts of drugs including marijuana, until it was decriminalized in New York.

In New York, which does not allow judges to factor in how dangerous someone might be if released, the only consideration allowed when deciding to set bail is the likelihood that the accused will return to court. The amount set is designed to encourage the defendant to return because if the defendant does not, the entire amount may be forfeited. But the Eighth Amendment also requires that the amount set not be excessive, meaning that the accused can actually afford it.

For decades in New York and around the country, bail was routinely set in amounts that people could not afford, leading them to languish in jail for months or even years until more often than not, they pled guilty simply in order to be released, not because they were, in fact, guilty.

“These decisions are made very fast,” Brooklyn defense attorney Masai Lord told the AmNews. “A whole bail application will take maybe three minutes, and [if] it goes for a long time, maybe 10 minutes.” 

In those few minutes, a defendant’s life may change radically: If bail is waived or set at an affordable level, the defendant will be released and will be much better able to fight the case. If no bail is set or set at a level the defendant can’t pay, the defendant goes to jail and may lose a job, housing and even custody of children, all before the defendant is found guilty.

Changing the Rules of the Game

Bail reform in New York “eliminated the use of cash bail and pretrial detention for most misdemeanors and nonviolent felonies, and kept cash bail and pretrial detention as an option for violent felony offenses,” said Krystal Rodriguez, a policy director at the Data Collaborative for Justice at John Jay.

“The other thing that the 2019 reform did is that it created provisions requiring the court to consider affordability of bail. So even for those violent felony offenses, most of which remained eligible for cash bail, when the judge was setting bail, they still had to consider whether or not someone would face an undue hardship to post that bail and whether or not they can afford it,” she added.

The 2019 reform also gave judges the ability to set non-monetary conditions on the release of a suspect, including monitored or supervised release. The reform additionally required the courts to gather data to measure how bail reform was working.
Before and after the passage of bail reform, tough-on-crime pundits and politicians, including New York City Mayor Eric Adams, who is a former NYPD captain, said that these reforms would lead to a spike in crime. And during the pandemic, when there was indeed a spike in many crimes, the mayor was quick to assign blame.

“Under the current law, judges are not allowed to consider whether someone is a threat to public safety when deciding whether or not to hold them in custody. This is a big mistake,” the mayor said at a 2022 press conference. “As a result of this insane, broken system, our recidivism rates have skyrocketed and those who say that the predicted wave of recidivism wouldn’t happen and the studies that claim to show that the rate of arrests for violent felonies has not changed since the reforms were passed, [I] have one word for you: wrong.”

Critics like the mayor often cherry pick or conflate numbers. But what is the truth about the impact of bail reform? Has it unleashed a wave of crime, especially gun crime, upon New York City streets or has it liberated thousands of people who would otherwise be suffering the horrors of Rikers Island and jails like it?

The Amsterdam News spoke to experts and social scientists about bail reform both in New York and also in Harris County, Texas, where it was implemented even earlier and a federally appointed court monitor has been collecting and analyzing data on what happens to those who are released for several years.

Deep in the Heart of Texas

“There is deep, deep damage that is done from even just a few days of pretrial detention,” Cody Cutting, an attorney for the Civil Rights Corps, told the AmNews.  

“People are not only separated from their families and their loved ones, but they suffer consequences, like losing their jobs, falling behind on rent and potentially losing their homes. They can suffer custody ramifications for their kids, they can be separated from critical medical care or medicine that they need. And these effects can actually last quite a long time even if somebody is eventually released.”

The Civil Rights Corps was one of several organizations that sued Harris County, which encompasses Houston, over the way that it set bail.

Before bail reform, someone arrested in Harris County would go before a magistrate who would conduct a probable cause hearing, to see if the arrest was, in fact, justified. If so, a bail hearing would follow. A single judge could conduct dozens of these a day and they would usually last only a few minutes.

“What usually would happen in those situations is the magistrate is going to consult a grid—a bail schedule—which would assign either release on their own recognizance for some folks, but for many folks there will be a scheduled amount of bail between $[500] and $5000 for those charged with misdemeanors,” said Paul Heaton, a legal scholar and professor at the University of Pennsylvania’s School of Law who analyzed how bail reform played out in Harris County. If a defendant could pay 10% of the amount set they would go free, if not, they would remain in jail.

“You could see, particularly with respect to misdemeanor cases, how a system like that could inadvertently create wrongful convictions,” Heaton said. “Let’s imagine I’m arrested for a misdemeanor, I go through this process. My bail is set at $1,000. I don’t have 100 bucks. So I’m there in pretrial detention for a few days. 

“A district attorney gets my packet, they look at it. ‘Oh, hey, Paul was charged with misdemeanor disorderly conduct. He’s been in custody for four days, that kind of seems like enough punishment. I’m just gonna go to his attorney and say plead out. We’ll have you home today. Time served, done.’  

“A defense attorney comes to me, ‘Hey, we’ve got this pretty good offer from the DA, right? I know that you’ve been here for four days now, if you plead out.’ But wait, it wasn’t me. The police arrested the wrong person in the bar fight. So, in that situation, I have this difficult choice. If I want to actually fight my case and assert my innocence, then my detention is prolonged? Maybe the next court date is a week or two weeks from then. Whereas if I plead guilty right away, I’m actually reducing the amount of time I spend in custody.”

It is this dynamic, which advocates and defense attorneys say plays out around the country, that leads to many innocent people to plead guilty to crimes they did not commit. 

Eventually, Harris County agreed to a consent decree to alter how and when it set bail, doing away with the bail schedule as well as limiting the number of crimes for which bail could be set. 

“We’ve described in our reports how there have been some real notable successes of these bail reforms, both in terms of people’s liberty—tens of thousands of people who would have been jailed under the old system who are not now—but also for public safety,” said Brandon Garrett a professor at Duke University School of Law who was appointed as federal monitor to ensure the consent decree was being properly implemented. 

Defense attorneys have long argued that the setting of excessive bail, and the pretrial detention that often results, has been used by prosecutors to leverage guilty pleas and the data from the Harris County federal monitor seems to support that conclusion. Once bail reform was implemented and more defendants were released instead of jailed, fewer people were found guilty and more of their cases were dismissed.

Perhaps most dramatically, the data show that between 2015 and 2021 an astonishing 60% fewer misdemeanor cases in Harris County result in a criminal conviction and the number of these cases that end in dismissal rose from 31% to 56%.
“There’s something deeply wrong with what was happening before, that these are people who do not need to be in jail. At best, maybe they need some supervision. At worst, the cases were actually meritless or not worthy of prosecution,” Garrett, the federal monitor, said.

“But either way, we’re seeing many tens of thousands of cases where the ultimate result is now a dismissal, which clearly would not have been dismissed under the old system,” he added.

He also noted that there was a measurable impact on public safety: arrests and crime went down.

“We’ve seen that misdemeanor arrests and rearrests have gone down over time, and a lot of other ways that this system has produced real positive effects. There had been racial disparities in who ended up in jail under the old misdemeanor system and those disappeared pretty quickly under these reforms,” he said.

Big Reforms in the Big Apple

In New York, the implementation of bail reform coincided with two other big events: the decriminalization of marijuana and the start of the coronavirus pandemic that led authorities to try and decrease the numbers of people in jail for public health reasons. Both events made it more difficult to understand the impact of bail reform but with time the data, and the impact on public safety, became more clear.

“The overall effect was that the ban of cash bail and pretrial detention reduced recidivism in New York City for people who were affected by judge’s release decisions,” said René Ropac, a senior research associate at the Data Collaborative for Justice (DCJ), John Jay College of Criminal Justice, who co-authored a recently released study on the impact of bail reform.

The report notes that eliminating bail for most misdemeanor and nonviolent felony charges reduced recidivism. There were reductions for any rearrest (44% vs. 50%) and felony rearrest (24% vs. 27%) over two years.

For all the claims by bail reform critics linking the legislation to a pandemic-era spike in gun violence, the report shows that those released due to bail reform during the period studied were actually slightly less likely to be rearrested on a gun charge.

“We compared people who were bailed or detained pre-reform in the first half of 2019, with similar people who were released without bail mandatorily after reform passed in 2020, and we found that people who were released had lower recidivism rates than people who were bailed or detained pre-reform,” Ropac added.

Ropac expanded on the impact of the 2019 reforms.

“Critics of bail reform basically claimed … that bail reform was detrimental to public safety, because people who are accused of certain charges cannot have bail set and therefore cannot be detained. …. And, therefore, they’re not prevented from committing further crimes in the pre-trial period. And that is fair enough—people who are in jail cannot commit crimes out on the streets. That is true,” Ropac said. 

“However, what our study shows is that once they’re out, once they’re released from jail, and again, that’s about only two months, on average, after they were first detained, they are actually more likely to recidivate than they would be otherwise, because of that criminogenic effect” from incarceration. 

The criminogenic effect, backed by data, that being in prison makes it more likely that you will commit future crimes, is something that bail reform opponents rarely speak about.

“The rise in violence is completely separate from bail reform and blaming bail for the safety problems we have makes us less safe, because it makes us less likely to confront the actual causes of this increase in violence,” said Tess Cohen, a former prosecutor in New York City’s Office of the Special Narcotics Prosecutor, who recently waged an unsuccessful bid to unseat the current Bronx district attorney.

“We’ve seen that setting bail actually, especially sending someone to a place like Rikers, makes them more likely to commit another crime in the future,” she added.

Recent citywide crime statistics from the NYPD put rest to the idea that bail reform was fueling a rampant increase in crime. While felony assaults did increase by 6.6% from the year before, murders are down 10.1% from a year ago; rapes are down 12.8%, robberies are down 5.6%, and burglaries are down 13% from 2022. Shootings are also down 25.8% year to date. 

Liberty and Safety

Since 2019, two sets of legislation changed the scope of bail reform but didn’t manage to scuttle the progress of advocates fighting to ensure that fewer New Yorkers languished behind bars solely because they could not afford bail. But it’s an open question as to whether bail reform in New York will survive the continued onslaught from tough-on-crime Democrats with aspirations for higher office, as well as Republicans and police unions trying to use crime as a wedge issue.

“Bail has become a scapegoat for law enforcement, politicians, [and] prosecutors who want something to blame for the rise that we’re seeing in violent crime last year. And bail is a convenient source of blame. But the reality is that the data doesn’t bear it out at all,” said former prosecutor Cohen. 

“The rise in violence is completely separate from bail reform and blaming bail for the safety problems we have makes us less safe, because it makes us less likely to confront the actual causes of this increase in violence.”

With all the focus on statistics, it is also vital to not lose sight of the people who are most impacted by bail reform.

“This bail system that we currently have is based on wealth. And unfortunately, it’s mostly working class or poor people who are held pretrial,” said Darren Mack, co-founder and co-director of Freedom Agenda, a nonprofit that organizes communities impacted by mass incarceration. 

Mack was arrested in 1992 for being an accomplice in a robbery and given a $4,000 bail that he could not pay. He spent 19 months on Rikers Island before going to trial and being convicted for his first offense. He spent a total of 20 years behind bars.

“I think we can have criminal justice, social justice, economic justice and public safety simultaneously. It’s not two opposing issues, and if we look to other states and other cities and other countries we see that we can have both. It’s not either/or; we can have both/and,” Mack said.

For decades, America has ignored Ben Franklin’s admonition: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” 

The Amsterdam News; Report for America corps member Tandy Lau contributed reporting for this story.

This series was made possible with the support of  a grant from Columbia University’s Ira A. Lipman Center for Journalism and Civil and Human Rights in conjunction with Arnold Ventures. Editing support was provided by Type Investigations.