Introduction
On April 1, 2019, New York State’s governor Andrew Cuomo reached a deal on a state budget, which included a far-reaching criminal justice reform. One of the most significant changes was the elimination of cash bail for the majority of pretrial defendants. The Bail Reform went into effect from January 1, 2020, and resulted in a drastic revision of pretrial procedures. Prior to reform, arrested individuals were brought to a judge, who assessed whether the defendant would be allowed to await the trial outside the jail. The judge could impose bail on a defendant, giving them a choice to pay in cash or secure a bond. The defendants who were unable to afford the bail had to stay in jail until the trial. After the reform, most forms of bail were prohibited for the majority of felonies, which allowed defendants to await their trial outside of jail. While the causes of the Bail Reform were reasonable, its execution did not go smoothly, which raised a need for balancing amendments.
Economic Cost of Incarceration as the Reason Behind the Reform
Pretrial incarceration was a significant expenditure item of New York State’s counties before the Bail Reform. Even by a conservative estimate, 57 counties outside of New York City spent more than $1,3 billion on jail incarceration in 2019, or about $20 million on average (Jones et al., 2021). Original Bail Reform helped lower the pretrial jail population by 40% in New York City alone since the defendants avoided incarceration in 9 out of 10 cases previously ineligible for bail (Rempel & Rodriguez, 2020). Even severely amended legislation contributed to a 30% decrease in New York City’s pretrial jail population.
According to Jones et al. (2021), incarceration rates on June 2020 level could be equivalent to $638 million savings statewide. These funds could be spent on improving local infrastructure, helping communities, or providing affordable housing for New Yorkers. Savings could also be directed to health and social services, which appeared to be especially important during the COVID-19 pandemic. Therefore, the New York Bail Reform had a solid economic reason of cutting unnecessary expenses and freeing the resources for the goals, different from pretrial incarcerations.
Ethical Aspect of Reform
Economic reasons were a prominent factor of New York Bail Reform; however, in modern reality, the ethical aspect could also be considered. In a perfect world, everyone should be treated equally by the law, regardless of their race, gender, or income level. In practice, that was not the case, as Black and Hispanic defendants frequently faced the unexpected troubles of the bail system. For instance, the median bail bond amount in the US had reached eight months of median income, which means that an average Black or Hispanic detainee would be unable to pay it (Ashdown, 2020).
Furthermore, such cases lead to situations where an innocent or relatively harmless but impoverished person would stay in jail, but a well-off dangerous detainee would be set free until the trial. According to Miller et al. (2021), in May 2018, nearly 75% of jail inmates were pretrial defendants who could not afford to pay the bail. In that regard, the New York Bail Reform facilitated more just legal procedure and helped to mitigate discrimination based on income or ethnicity.
COVID-19 Impact
A COVID-19 outbreak in New York City surged in March 2020, and while it was not related to the Bail Reform directly, the depopulation of jails helped to lower possible threats to public health. The reform went into effect in January 2020; however, the retroactive application started in November 2019. As a result, the population of jail inmates dropped from almost 7000 to approximately 5300 by February 2020, just before the rise in COVID-19 cases (Miller et al., 2021).
Densely populated jails provide an excellent environment for spreading infectious diseases since most inmates can contract them and be discharged from incarceration soon afterward. In April 2020, Okano (2020) suggested the early release of low-risk offenders to prevent outbreaks in jails. Obviously, back in April 2019, Andrew Cuomo and New York State legislators could not predict COVID-19. However, the Bail Reform allowed to discharge many inmates before the outbreak and mitigate possible consequences. This hindsight experience can be valuable in case of future epidemics.
Reforming the Reform: Finding the Balance
While economic efficiency and ethical application of the law are important, the main focus of criminal justice lies in enforcing the law and upholding public safety. The Bail Reform was based on reasonable economic and ethical grounds and even brought an unexpected benefit of health risks mitigation during the surge of COVID-19. However, the authorities had to severely amend it, adding a significant number of felonies to bail-eligible charges.
The Reform showed a negative effect on public safety since within a mere month from its implementation, many discharged defendants reoffended and had to be rearrested. The reoffences were a steady pattern, not a series of anomalies or coincidences. According to Mangual (2020), by February 16, 2020, New York City police reported increases in a variety of felonies, the most notable examples were robberies (32,3%), assaults and burglaries (21,1%), and grand larcenies auto (64,3%). The following criticism resulted in the implementation of amendments to the Bail Reform in April 2020. Therefore, the original Bail Reform cannot be considered effective since it negatively affected public safety and failed fundamentally.
New York Bail Reform Effectiveness: Possible Future of Pretrial Incarceration
A sharp increase in crime rates after the New York Bail Reform implementation proved the ineffectiveness of its original shape. Nevertheless, the process of pretrial incarceration reforming should not be abandoned, as it has reasonable underlying economic and ethical aspects. The experts suggest several means of creating a more just bail system without compromising public safety. Firstly, they advocate for empowering the judges by granting them the authority to evaluate the defendant’s danger to society or revoke releases after reoffences. In the current state of the law, the New York State judges can neither hold defendants pretrial on the grounds of risk they may pose to public safety nor revoke releases (Mangual, 2020).
Secondly, existing cash and bond bails can be supplemented with new non-monetary bails, which will create an alternative for the judges and defendants with lower income (Rempel & Rodriguez, 2020). Lastly, the state can be permitted to detain dangerous defendants while having the cash bail eliminated. Such a system operates in New Jersey, as described by Gold and Wright (2020). Overall, even though the initial results were unsatisfactory, the Bail Reform still has a chance to produce decent outcomes.
Conclusion
The original New York State Bail Reform failed to achieve its goals and should be considered ineffective. While having several redeeming qualities — possible economic benefits, improvements from the ethical point of view, and mitigation of health threats, it has also failed in public safety. However, with several corrections, the Bail Reform could change the practice of pretrial incarcerations to a better state. It can save funds for the counties and reduce discrimination towards defendants of different ethnicities and income levels. The most difficult part remains in finding the balance between saving, respecting the defendants, and upholding adequate standards of public safety.
References
Ashdown, D. (2020). The end of cash bail: As simple as sending a text message? SLU Law Journal Online, 1–5. Web.
Gold, R. M., & Wright, R. F. (2020). The political patterns of Bail Reform. Wake Forest Law Review, 55(4), 743–756.
Jones, L., van den Heuvel, S., & Lawson, A. (2021). The cost of incarceration in New York State. Vera Institute of Justice, 1–24. Web.
Mangual, R. A. (2020). Reforming New York’s Bail Reform: A public safety-minded proposal. Manhattan Institute, 1–14. Web.
Miller, E., Martin, B. D., & Topaz, C. M. (2021). New York City jails: COVID discharge policy, data transparency, and reform. Institute For the Quantitative Study of Inclusion, Diversity, And Equity, Inc., 501(c)3, 1–20. Web.
Okano, T J. (2020). Preventing major outbreaks of COVID-19 in jails. The Lancet, 395, 1542–1543. Web.
Rempel, M & Rodriguez, K. (2020). Bail Reform revisited. The impact of New York’s amended bail law on pretrial detention. Center for Court Innovation, 1–20. Web.