By New York State Governor Kathy Hochul
In 2019, the state Legislature enacted landmark reforms to our bail laws. The goal of these changes was to overhaul a system where race and access to money all too often determined whether defendants would be locked up before facing trial. These disparate outcomes, which disproportionately impacted Black and Brown communities, were not only fundamentally unjust, but undermined trust in our criminal justice system.
The reforms were successful: Fewer New Yorkers are kept behind bars just because they can’t pay, and we’ve saved taxpayer dollars in the process.
Still, since the law was passed, we have seen a distressing increase in shootings and homicides. The data does not, however, suggest that bail reform is the main cause: In New York City, the percentage of people who are arraigned and released for gun crimes who go on to be rearrested has barely changed since bail reform took effect, from 25% before bail reform to 27%, according to an analysis from the New York State Division of Criminal Justice Services. Outside of New York City, that percentage went from 20% to 22%.
Similarly, the percentage of shooting arrests in New York City where the defendant had an open felony charge has hovered around 25% for years, though it crept up from 24% in 2019 to 28% in 2021, according to NYPD data.
Blaming bail reform for the increase in violence that cities across America are facing isn’t fair and isn’t supported by the data. Doing so risks distracting us from what are likely far more significant factors: upheaval from the pandemic, the availability of illegal guns, increased gang activity, lower arrest rates and a backed-up court system, to name a few.
But that doesn’t mean the bail law as it currently stands is perfect, either. When one out of four people arrested for gun crimes goes on to be re-arrested, we haven’t done enough. These repeat offender rates were a failure before bail reform, and they remain a failure today.
We are committed to protecting the progress we’ve made toward a fairer criminal justice system. But that is not at odds with making thoughtful, measured changes to our laws that would strengthen public safety.
First, we need to address the problem of repeat offenders. If someone is committing a second or third offense while out on pretrial release, officers should be able to make an arrest and not be limited, as they are in many cases, to issuing a “desk appearance ticket.” Similarly, hate crimes should be subject to arrest, not desk appearance tickets. And for repeat offenders, judges should be allowed to set bail — even if the crime would not currently be bail-eligible.
Second, we should make it possible for judges to set bail in all felony cases involving illegal guns, including when illegal guns are sold or given to minors — a crime that is, astonishingly, not currently bail-eligible.
Finally, for violent crimes and crimes involving guns, we should make it possible for judges to set more restrictive pretrial conditions, based on concrete criteria. Right now, all decisions about bail and pretrial detention must be based solely on the “least restrictive” conditions necessary to ensure the defendant returns to court. In domestic violence cases, the Legislature already gave judges more factors to consider (such as whether the defendant has a history of firearm use or previously violated an order of protection).
This is not a subjective “dangerousness” standard — decisions must be based on specific, factual circumstances. We should apply this model, based on what’s already in the law for domestic violence, to other serious crimes.
These changes will improve our laws, but they won’t suddenly reverse the rise in violence. That will require a holistic approach. We are already stepping up our efforts to stop the flow of illegal guns, support community-based violence interruption, and increase resources for local law enforcement. And we’ll keep investing in solutions that work.
Another key piece of the equation is mental health. We propose changes to the law to better enable licensed mental health professionals to collaborate with crisis intervention teams and police. Along the same lines, we need to strengthen Kendra’s Law to make it easier for judges to require individuals who are struggling with serious mental illness and present a danger to themselves or others to participate in mandatory outpatient treatment. Along with these proposals, we should provide additional resources for more psychiatric beds in community-based hospitals and housing, so that no one is turned away when they need help.
We should also make it easier for people who have served their time to reenter society successfully. That’s why we are proud to have enacted “Less Is More” legislation, so that individuals are not imprisoned for technical parole violations, and why we have proposed allowing people behind bars to participate in the state’s Tuition Assistance Program, so that they can come out of prison with more education and skills than when they went in.
Taken together, these changes will continue the work of improving our laws, policies and practices to make our state a fairer and safer place — exactly what that the Legislature endeavored to do in 2019 and what we pledge to keep working with them on.