Policy Analysis: New York State’s Bail Reform
Across the United States, 70% of those incarcerated in local jails have not been convicted of a crime, and many defendants are only in this position because they are unable to pay cash bail. The majority of these people fall within the poorest third of society, and 69% are people of color. Additionally, black and brown defendants receive bail amounts twice as high as those set for white defendants, but are less likely to be able to afford them.
In response to this problem, New York passed comprehensive bail reform in April of 2019. This law, which went into effect in January of 2020, eliminated money bail and mandated release for most misdemeanors and nonviolent felonies: 90% of the crimes committed in New York State.
However, in early March, the NYPD released a report stating that February 2020’s crime was up 22.5% from the year before. This spike of crime was widely covered in New York’s tabloids, which blamed the crime on bail reform. In response to this coverage, NYC Council members released a report arguing that those released because of bail reform only made up 7% of the increase in crime. But due to opposition, New York expanded the number of crimes eligible for bail and allowed judges to conduct risk assessments of defendants when reforming the law in April of 2020
In this report, I will be analyzing alternatives to New York State’s original bail reform package. I will be using the framework outlined in Kraft and Furlong’s Public Policy: Politics, Analysis, and Alternatives and will focus on the evaluative criteria of efficacy. In order for a policy to be considered effective, it must immediately reduce the population of people in pre-trial detention, protect public safety, and set the stage for a significant long-term reduction in New York State’s incarcerated population.
Additionally, as outlined above, cash bail is both a racial and economic justice issue. Therefore, I will also be analyzing the alternatives through the lens of the Intersectional Policy Framework laid out in Hankivsky’s An Intersectionality-Based Policy Framework. This framework considers the interrelated identities of race, gender, and class within policy and understands the structures of power hierarchies within the law.
In order to utilize the intersectional framework, I will be valuing John Powell’s theory of targeted universalism, which focuses on using targeted strategies to meet universal goals. Targeted universalism recognizes that when all groups affected by a policy are painted with the same brush, current divides may be exacerbated.
Analyzing the Original Bail Reform Bill
Although the original bail reform bill was only in effect for three months, the data that is available prove that it was effective. First, it led to an automatic reduction in New York’s incarcerated population, which was down 27.9% in January 2020 from January 2019. Second, it prioritized public safety. Although the Vera Institute argues that there was not enough time to conclusively determine whether the 2020 reforms led to an increase or decrease in crime, they look to NY counties that implemented similar reforms before January of 2020. For example, Erie County limited cail bail to violent felonies in 2018 and saw a drop in crime along with incarceration. Lastly, a conservative estimate projected that New York State could see a 40% decrease in incarceration in the long term.
When looking through an intersectional framework, the reform bill is still effective, as it directly targets a system that primarily affects low income people of color, and therefore uses the principle of targeted universalism. In order to reduce racial disparities in the criminal justice system, it is important to remove the systems that helped create them in the first place.
As the new bail reform law expands the number of crimes for which cash bail is allowed, it mitigates the effects outlined above. However, as it does continue to prohibit cash bail for many crimes, it is a step in the right direction and New York will likely see the impacts outlined above on a smaller scale.
Alternatives
Prohibiting For-Profit Bond Agencies and Replacing them with Pre-Trial Agencies
If people are unable to pay money bail, they may rely on a for-profit bail bondsman. These companies loan defendants bail in exchange for a payment of around 10% of the bail amount. Although the company is not required to pay the bail to the court, if the person does not return to court after they are released from jail, the bondsman is required to find the person or pay the bail in full. The for-profit system is outside of the traditional criminal legal system and is often ripe with corruption, including financial exploitation and sexual coercion.
States that have prohibited for-profit bondsmen have replaced them with institutional pretrial services. In Multnomah County, OR there are four services: some inmates are released without bail and promise to return to court, others are reviewed by Judicial Review for release, low-risk defendants are prohibited release and under Pretrial Supervision, and higher-risk defendants are put under Close Street Supervision under the Sheriff's Office.
Prohibiting For-profit bail bondsmen would be an effective solution because it would open up the door for bail reform down the line. Bail bondsmen have a strong lobby with political influence, and oppose bail reform because they understand that without cash bail, they would not have a business. Removing the roadblock of the bail industry would allow New York State to pursue more comprehensive bail reform and greatly reduce its incarcerated population. Furthermore, fully-funded government pretrial services can work to reduce the number of people paying money bail and create a system centered on supervised release, thereby fulfilling the goal of reducing the incarcerated population. Additionally, prohibiting bondsmen would not hurt public safety. Although bail bondsmen are often touted as protecting public safety by ensuring that people will arrive for their court date, studies have shown that those who were bailed out by a bondsman and those bailed out with their own funds often return to court at the same rate. However, this policy’s efficacy is limited because it cannot be a sole solution. Even if we were to abolish the for-profit system, the institution of cash bail still stands.
Under the intersectional framework, abolishing the for-profit bail industry would prioritize equity and social justice because bail bondsmen often target low-income people of color. Therefore, abolishing the for-profit industry fulfills the principle of targeted universalism: it addresses a system that disproportionately impacts an infected group to fulfill the universal goal of creating a more equitable pretrial system.
Expanding bail reform with risk assessments
Up until April of 2020, New York was the only state in the nation that prohibited judges from using the consideration of public safety when deciding whether or not to set bail. The April 2020 reformed model allows judges to consider whether it is likely that a defendant would commit a crime that could physically injure another person if released without bail. A system with bail reform and risk assessment would allow someone to be released without cash bail for a wide array of non-violent crimes unless a judge conducts a risk assessment and determines that they cannot be released pretrial.
Many proponents point towards “risk-assessment” as an important part of bail reform. At first glance, it looks effective. It allows the government to reduce the numbers of crimes for which bail is allowed in general while making the public feel as though public safety is preserved. Additionally, allowing those who pass risk assessments out of jail without bail would limit the incarcerated population in the long term.
However, when looking through an intersectional framework, risk assessments have many fallbacks. The most common risk assessments use a computer algorithm that takes into account history and demographics to calculate how likely it is a defendant would commit another crime. As the data come from a criminal justice system influenced by racial bias, they produce biased results. For example, a 2016 study found that black defendants were almost twice as likely than what defendants to falsely be labeled “high risk,” while white defendants who went on to commit another crime were more likely than black defendants to be labeled “low risk.” Risk assessment shows the pitfalls of system that does not prioritize targeted universalism: although risk assessment was designed as a “race-neutral” solution to increase public safety, because it does not take into account the systemic racism of the criminal justice system, it only works to exacerbate a two-tiered justice system.
Conclusion
In conclusion, the most effective solution, when viewed through an intersectional policy framework, is the original bail reform. The law proved that it could reduce the incarcerated population in the long and short term while still maintaining public safety. Additionally, it specifically targeted a system that kept low-income people of color in jail and allowed wealthier people to buy their freedom.
The new reform bill stands as a satisfactory alternative to the original reforms, although it will likely mitigate the positive effects of the original law. However, these new reforms must come with two additional changes. First, the New York state legislature must move to ban the for-profit bail bond sector in order to allow for broader bail reform down the line. Abolishing bail bonds is the first step to returning to reforms in line with the level of the original law. Additionally, institutionalizing pretrial services can allow New York to move away from financial release even on crimes where the state law still allows cash bail. Second, the New York State legislature must reform the new law to prohibit the use of risk assessment. Although it was designed to be “race-neutral,” risk assessment has proven to exacerbate racial divides in the criminal justice system. In order to create a targeted universalist policy that is proven to be effective under an intersectional framework, New York State cannot use risk-assessment calculations in the bail process.