How New York’s Bail Law Became a Political Lightning Rod

A coalition of Jewish organizations, rabbis, and elected officials express their support for bail reform at a City Hall rally on January 16, 2020.
Photo: Gabriele Holtermann-Gorden/Sipa USA via AP

After two NYPD officers were gunned down while responding to a domestic disturbance call in January, critics of the state’s bail-reform law pressed Governor Kathy Hochul to roll back the reforms that they blamed for a surge in violent crime. When asked about the issue at a press conference at the time, Hochul accused Republicans of attempting to “politicize” it.

“I will absolutely stand behind the fundamental promise on why we needed bail reform in the first place,” Hochul said.

Today, Hochul is the one trying to roll back bail reform. In a ten-point plan for public safety she unveiled to lawmakers in Albany in mid-March, four of the points concern changes to the bail-reform law. The plan would make hate crimes and crimes against transit employees eligible for arrest rather than just a desk-appearance ticket, make certain gun offenses eligible for bail, allow arrests for repeat low-level offenses, and permit judges more discretion in considering criminal history when determining bail for serious felonies.

The politics surrounding bail reform have continued to change as proponents of the legislation attempt to balance their support for criminal-justice reform against vocal critics who believe the bill is responsible for an increase in crime in New York City and statewide — though there is no strong evidence to prove this.

The fight to change the law to spare people from pretrial detention because they can’t afford bail had long been a priority of criminal-justice reformers. But it was supercharged following the 2015 death of Kalief Browder, who was detained on Rikers Island as a teenager for three years because his family was unable to pay his $3,000 bail. Browder, who had been accused of stealing a backpack full of valuables, spent a significant portion of his time in solitary confinement and endured attacks from guards and his fellow inmates. In 2015, two years after the charges were dismissed and he was released from Rikers, he committed suicide — which his family says was the result of the trauma of being imprisoned .

The effort to change the law so that people wouldn’t be detained just because they could not pay bail culminated in 2019 when the state legislature passed legislation eliminating bail and pretrial detention for most nonviolent felonies and misdemeanors. Almost as soon as the law went into effect in January 2020, attacks on it began. The reform coincided with a rise in violent crime across the country during the onset of the pandemic. In New York, law-enforcement officials and politicians critical of the reforms latched onto them as the cause of the crime spike in the city, arguing that bail-reform essentially returned violent criminals caught by police to the streets where they reoffended.

With criticism of the bail law continuing to mount, state politicians passed an amendment of the law in April 2020 as part of that year’s budget, which increased the number of bail-eligible offenses and provided judges more leeway in setting bail for repeat offenders. The change received the approval of Governor Andrew Cuomo and Mayor Bill de Blasio who had been advocating for additional revisions to the law.

Through the next year, concerns about crime were a major focus of the 2021 mayoral race. The new mayor, Eric Adams, is a former police officer who made public safety the signature issue of his campaign. He has repeatedly advocated for reforms to the state’s bail law, even traveling to Albany in February to press lawmakers on his position. Hochul’s plan includes other changes that Adams has called for, such as adjusting the “Raise the Age” law, which increased the age at which a minor can be prosecuted as an adult to 18.

After Hochul rose to the governor’s seat following her predecessor’s resignation, debates about bail reform continued to simmer as state Republicans wielded the issue in last November’s elections to great success.

Bail reform is expected to play a significant role in this year’s elections as well. Hochul, who is currently running for a full term, has received pushback from both her Democratic and Republican rivals, simultaneously fielding arguments that her changes go either too far or not far enough. (The governor’s office did not respond to a request for comment.)

A recent Siena College poll found that 56 percent of total voters believe that the 2019 bail-reform law has been bad for New York. Sixty-four percent of those same voters said that they believed that the law has resulted in an increase in crime. However, when asked how concerned they were that giving judges increased discretion to set bail will result in poor people and people of color being unfairly incarcerated, 24 percent of voters said they were “very concerned” while 32 percent said they were “somewhat concerned.”

Many advocates for the law reject the notion that bail reform can be linked to a recent rise in crime. Brad Lander, the city’s comptroller, said that discussions about the issue have become “divorced from the data.” A report released by his office office last week found that recent increases in crime in New York City — mirrored by upticks around the country — are not a result of the reforms. According to the report, 14,545 people were subject to bail in 2021, compared to 24,657 people in 2019. However, in 2021, $268 million in bail was posted on behalf of defendants, an increase from $186 million posted in 2020. The analysis also found that in December 2021, 96 percent of the people who were released pending trial were not rearrested, and that 99 percent of people were not rearrested on a violent felony charge, regardless of the pretrial conditions in place.

Advocates of the 2019 bail reform feel that any rollback of the legislation will only increase racial disparities in the justice system, and have an adverse effect on poor New Yorkers who might struggle to pay excessive bail.

“I wouldn’t call it a public-safety plan. I call it a mass-incarceration plan,” said Marie Ndiaye, a supervising attorney with the Legal Aid Society. She labeled the proposal “regressive,” citing the provision that would allow judges to account for community safety when setting an individual’s bail. Mayor Adams has called for judges to be able to factor in “dangerousness,” while many detractors say such a standard risks potential racial bias in sentencing.

Akeem Browder, Kalief’s older brother, believes that Hochul’s proposal undoes years of reform work from advocates without tackling underlying societal problems, adding that he doesn’t believe the governor is “genuine in her approach.”

Browder, who founded the Kalief Browder Foundation, which advocates for pretrial detention reform, said that, as a single father raising a son in the Bronx, he knows violence in the city is a concern. But he believes politicians aren’t doing enough to invest in underfunded communities and to address issues of poverty and mental health.

“We do need safety, but we don’t need over-policing, because what will happen is what has happened in the past. Over-policing only happens in our communities of Black and brown, poor or disenfranchised communities. So, over-policing, arrests and incarceration and surveillance is what will happen,” Browder said.

He continued, “What we need is safe housing and good health care, child care, reliable transportation. We need a better living wage. But that’s not what’s going to be looked at when we’re talking about public-safety concerns.”