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Bail Reform Remains at Center of New York Political Debate But State Legislature has Never Held a Hearing On It

Outside Rikers Island (photo: William Alatriste/NYC Council)

New York State’s sweeping bail reform law first went into effect in January 2020 and has been subsequently amended twice since then in response to widespread opposition from law enforcement, Republican officials, and some moderate and conservative Democrats. Since its first passage -- through three consecutive legislative sessions and into this statewide election year -- bail reform has been a highly contentious issue, with heated political rhetoric often outpacing facts.

It is now among the top issues Republicans are focused on in this year's races for statewide elected offices, including governor, and all the seats in the House of Representatives and both houses of the State Legislature, with GOP candidates attempting to tie it to Democrats and increases in crime, while Democrats point to the lack of data to support those claims and adjustments they have made to the law.

But even amid constant debate and after passing the initial reforms and two partial rollbacks, the Democrat-dominated State Legislature has yet to hold a dedicated oversight hearing on the implementation and effects of the law. Such a hearing could serve to delve into data, dispel myths, and debunk outright lies about the law’s impact on crime, while serving as an accountability measure for all three branches of government for their roles in the passage, execution, and interpretation of the law.

The bail reform law, first passed in 2019 under then-Governor Andrew Cuomo without a legislative hearing on its development, removed cash bail as a possibility for most misdemeanor and nonviolent felony charges. It was meant in large part as an economic and racial justice measure to ensure that people did not sit in jail pre-trial simply because they could not pay their bail, unlike wealthier people with more means. In 2020, just three months after the law went into effect, it was revised to make more crimes bail eligible and then, this year at the urging of Governor Kathy Hochul, it was changed again to give judges more discretion in setting bail and adding a number of gun offenses to the list of bail eligible crimes.

But law enforcement officials, Republicans, New York City Mayor Eric Adams, a moderate Democrat, and others have all called for more stringent bail laws in order to jail more defendants pre-trial. They have blamed the reforms for the increase in crime that has coincided with the COVID-19 pandemic and been part of a national trend despite limited data to support such claims.

Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie, both Democrats, have strongly resisted those calls and have repeatedly pushed back. But they haven’t yet convened even a single dedicated hearing to try to set the record straight on bail reform, particularly after the release of the latest data from the state’s Office of Court Administration and Department of Criminal Justice Services, which showed that bail reform is not to blame for the major uptick in crime over the last two-plus years.

Though crime did significantly jump from 2019 to 2020 – as it did nationally during the onset of the pandemic – the new data shows that rearrests for defendants within 180 days of arraignment in New York City stood at 19% in 2019, rose to 22% in 2020 and dropped to 20% in 2021 (the data covers the first nine months of 2021). Outside of New York City, rearrests in the same category rose from 16% in 2019 to 23% in 2020 and then fell to 21% in 2021. Fewer individuals were released with bail set while most individuals were released on their own recognizance, and others under supervision or one or more non-monetary conditions.

In New York City, the rate of failure to appear in court dropped from 15% in 2019 to 8% in 2020 and rose to just 9% in 2021. Outside the city, the failure to appear rate remained largely flat – 17% in 2019, 19% in 2020 and 18% in 2021.

“Our chamber has had a record number of hearings across the state including on justice system reforms,” said Mike Murphy, a spokesperson for State Senate Democrats, in an email. “The current ‘controversy’ is the result of political posturing and misinformation. Everyone understands the importance of increasing public safety, but succumbing to national Republican fear mongering around bail reform, misses the opportunity to adopt real solutions.”

“Facts matter. Study after study have shown that bail reform has had no effect on the crime rate. And while crime remains at historically low levels, the proliferation of guns on our streets is historically high. We need truth – not fear – to guide our responses to this crisis,” he added.

Senate and Assembly Democrats and the governor have all routinely made the point, backed up by data, that judges are often not setting bail even in cases where an alleged crime is bail eligible. Assembly Speaker Heastie said as much in an August interview on NY1. “If judges…are not asking for bail and they are releasing people on their own recognizance, you know, that’s the judge’s determination,” he said. “But then, the counterargument comes back to me, ‘Too many people are getting out, therefore you should give judges discretion.’ I’m like, ‘Judges already have discretion.’ It’s almost like a catch-22.”

At the time, Hochul suggested that judges need more training on the new bail laws. “​​If judges aren't using the broad discretion they have because they believe their hands are tied, I want to help assure them and educate them that changes were made," Hochul said during an August 4 news conference. "Despite all the rhetoric and politicization of this [topic], good changes were made. I know this because I fought hard for every single one of them.”

A spokesperson for the Office of Court Administration responded to Hochul at the time. “Judges have received extensive training on the bail reform legislation, including all of its amendments,” said Lucian Chalfen, the spokesperson, according to the New York Post.

While Hochul, Heastie, and others have often called out law enforcement officials for politicizing the issue of bail, the Legislature has not sought the possible clarity and accountability of a public hearing to take testimony from those officials or their representatives.

Speaker Heastie’s office did not respond to a request for comment for this article.

Murphy’s point has been echoed by criminal justice reform advocates who find themselves vindicated by the latest data and say that a hearing on bail reform would simply serve as a public forum for the airing of grievances by its fiercest and loudest opponents.

“There is no need for a legislative hearing, because there is no legitimate debate to be had,” said Arielle Reid, supervising attorney with the Decarceration Project at The Legal Aid Society, in a statement. Reid said the data clearly shows that bail reform has not contributed to an increase in crime and “claims to the contrary are devoid of facts, and merely pathetic attempts to further a political agenda. Bail reform is playing out as intended, decarcerating local jails, keeping families and communities whole and bolstering public safety in every corner of New York State.”

A public hearing could, however, give legislators a chance to hear directly from law enforcement officials, give them an opportunity to present their own data, and also hold those officials to account for any misinformation they may be spreading. A clear example of that came in a legislative hearing in Albany in October 2021, when then-NYPD Commissioner Dermot Shea backtracked on his repeated and unfounded claims that bail reforms were behind an increase in gun violence in the city.

As Heastie noted in an interview on NY1 last week, referring to OCA and DCJS, “[B]oth of those agencies said bail reform is not the reason why crime has increased.”

The Legislature regularly holds oversight hearings, whether by the Assembly, the State Senate, or jointly. For example, in early October, the Assembly transportation committee held a hearing “to Review Implementation of New York's Complete Streets Act.”

On Monday of this week, the Assembly sent a press advisory about a Tuesday hearing “to examine the current state of primary prevention programs, as well as potential direction for future development of programs” related to the state’s child welfare system. The hearing was set to a follow-up to a The Family First Prevention Services Act passed in 2018, and, per the advisory, the Assembly’s children and families committee was holding the hearing “to obtain input from various stakeholders to ascertain the effect of primary prevention on current and future issues facing New York’s child welfare system.”

There have been other occasions where the topic of the bail law was an intense subject of discussion such as state budget hearings, including when Mayor Adams testified before the Legislature for the first time as mayor this year. Adams, in particular, faced harsh scrutiny from legislators around his comments on bail, including from Assemblymember Latrice Walker, a Brooklyn Democrat who sponsored the original bail reform proposal. (Walker’s office did not respond to a request for comment for this story.) But those exchanges have been tangential, not the main focus of whatever hearing they were part of.

Likewise, in New York City, City Council members could press Adams administration officials on the mayor’s claims of connections between the bail law and public safety, the mayor’s calls for jailing more defendants pretrial as the city struggles to improve the deadly conditions in the Rikers Island jail complex, and related issues. The City Council last held a hearing on bail reform in 2018, before the proposed legislation passed the State Legislature. “There are no plans for a City Council hearing on this state legislation at this time,” said a Council spokesperson, in a statement.

Even after the bail reform law was somewhat hardened again this year, there were those who have pushed the governor to hold a special session to revisit it further. That includes Mayor Adams, who has spent much of the first year of his tenure focused on crime and repeatedly blaming bail reform for recidivism. “Our criminal justice system is insane. It is dangerous. It’s harmful. And it’s destroying the fabric of our city,” he said in August at a news conference, where he offered data on repeat offenders responsible for hundreds of crimes. “As a result of this insane, broken system, our recidivism rates have skyrocketed.”

But, as the data shows, rearrests for those released on their own recognizance dropped from 18% in 2019 to 16% in 2020, while for those on supervised release and other conditions increased from 39% to 40% in that same time.

Another major critic has been U.S. Rep. Lee Zeldin, the Republican nominee for governor in this year's election, who has used public safety as a wedge issue in his campaign against Hochul. Republicans across the state are again running against bail reform, as they have in elections around the state over the last few years, including successes in New York City and on Long Island last year.

Democrats like Senator Michael Gianaris, among the staunchest defenders of the bail reform law, say they’re always taking steps to balance the law with the need for public safety.

“There's situations like the changes we just made, and we're always trying to learn and improve, where someone who is repeat offending over and over and over again while they're out, obviously should be treated differently and we have now taken steps to deal with that circumstance," Gianaris said in a July interview on Gotham Gazette’s Max Politics podcast, speaking of the changes made in the April state budget, "but the overall issue of whether we should require people to pay for their freedom before they're convicted of a crime is, once you scratch the surface and actually learn about it, pretty clear where justice lies."

At the heart of the dispute over the bail reform law is a disagreement over the data, with both opponents and proponents claiming that it supports their conclusions.

“Albany’s cashless bail laws continue to endanger every man, woman and child in New York State,” said State Senator Rob Ortt, the Senate Republican Minority Leader, in part in a statement to Gotham Gazette. Ortt said the latest numbers confirm “what every New Yorker already knew: criminal activity has increased.”

Peter Kehoe, executive director of the New York State Sheriff’s Association, echoed Ortt’s view of things, insisting that “it is important” to hold a public hearing on bail reform. “The state is putting out statistics, which they tout as showing that [crime] is at least no worse than it was prior to bail reform,” he said in a phone interview. “What they have is a system that's not working. And so I think if they had hearings, and they really were interested in finding out what is happening and how to make it better, we could help them come up with a good reform statute that still protected the public,” he added.

“I think our experience is quite to the contrary,” Kehoe said of the state data. “The statistics don’t match up with what law enforcement is seeing in the streets. And I think if legislators are going to rely upon the statistics, they're not getting an accurate picture of really what's going on out there.”

Washington County District Attorney J. Anthony Jordan, president of the District Attorneys Association of the State of New York, similarly said in a statement, “Any time significant changes to our laws and public policy are made a concomitant and thorough follow up must also be undertaken to evaluate the efficacy of the changes and look at further necessary amendments or adjustments.”

Jordan went further, saying that the Legislature should be examining the various criminal justice reforms approved in recent years, including those related to discovery reform and raising the age of criminal responsibility. “Public hearings where legislators, stakeholders and interested residents can better understand how these new laws are being implemented around the state can lead to significant improvements and adjustments to those laws,” he said.

by Samar Khurshid, senior reporter, Gotham Gazette

Read more by this writer.

Note - this article has been updated.

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