By Jaeok Kim, Quinn Hood, and Elliot Connors

Over the last decade, thousands of New Yorkers have been held in jail pretrial, largely because they could not afford to pay bail. In April 2019, New York legislators passed bail reform bills updating a set of laws that had remained largely untouched since 1971. The laws, which went into effect on January 1, 2020, made release before trial automatic for most people accused of misdemeanors and nonviolent felonies. In cases that remained eligible for bail—including violent felonies and some domestic violence- or sex-related charges—the law mandated that the judge consider a person’s ability to pay bail. However, an organized, immediate backlash by the opponents of bail reform led the New York legislature to amend the law in April 2020, only three months after the original reform went into effect. Meanwhile, in March 2020, New York became an epicenter of the COVID-19 pandemic. The pandemic changed the way the criminal legal system operated. Court hearings, including arraignments, became virtual. Jury trials were cancelled. And, understanding that jails could become COVID-19 hotspots and drive outbreaks outside of the jails, some court actors across the state began working to reduce jail populations. This report by the Vera Institute of Justice (Vera) is the first to examine the impact of April 2019’s bail reform in New York State by exploring trends in jail populations and admissions in New York City and a sample of counties

New York: Vera Institute of Justice, 2021. 44p.

By Brad Lander

The purpose of bail is to ensure that a person who is arrested returns to court for trial. However, in practice, the impact of bail has been to detain tens of thousands of New Yorkers, presumed innocent, before trial and cost low-income families tens of millions of dollars every year. To address these concerns, in April 2019 the New York State Legislature passed sweeping reforms to state bail laws. The guiding principle was that no one should be jailed because they are too poor to pay bail. The law prohibited bail-setting for most misdemeanor and non-violent felony charges, required judges to consider a person’s ability to pay before setting bail, and required that defendants have at least three options for making bail, including less onerous options. In the ramp-up to implementation of bail reform on January 1, 2020, the jail population dropped quickly, falling from about 7,100 on November 1, 2019 to 5,800 on January 1, 2020 and to 5,500 on February 1, 2020. When COVID-19 hit the city in March 2020, the jail population fell further, temporarily falling below 4,000 as arrests dropped and efforts were made to reduce the incarcerated population, including those at greater risk of severe illness, during the pandemic

New York: Office of the City Comptroller, Bureau of Budget and Bureau of Policy and Research 2022. 17p.

By Katherine Hood, Daniel Schneider

  Despite growing interest in bail and pretrial detention among both academic researchers and policymakers, systematic research on pretrial release remains limited. In this article, we examine bail and pretrial release practices across seventy-five large U.S. counties from 1990 to 2009 and look at the contextual correlates of bail regime severity. We find tremendous intra-county variation in bail practices, as well as a nationwide decline in the use of nonfinancial release and doubling of bail amounts during this period. This variation is not accounted for by differences in case composition across jurisdictions or over time. Patterns of bail practices are associated with political, socioeconomic, and demographic factors, however. Implications of these findings for future research on bail and pretrial detention are discussed.  

RSF: The Russell Sage Foundation Journal of the Social Sciences, Vol. 5, No. 1,  (February 2019), pp. 126-149

By René Ropac and Michael Rempel

This report examines the impact of New York’s bail reform law on recidivism in New York City. We sought to produce a credible analysis of the impact of releasing people under reform who would have otherwise faced bail or pretrial detention. 

Key Findings:

• Eliminating bail for most misdemeanor and nonviolent felony charges reduced recidivism. There were reductions for any re-arrest (44% vs. 50%) and felony re-arrest (24% vs. 27%) over two years.

• For people remaining legally eligible for bail (most of whom were charged with violent felony offenses), reducing the use of bail through measures such as supervised release expansion or requiring judges to set the least restrictive condition did not affect recidivism in either direction.

• The 2020 amendments targeted a specific subgroup of people whose re-arrest rates had increased under the original reforms.

• Beyond the aforementioned overall takeaways, bail reform had varying recidivism effects depending on people’s charges and recent criminal history.

New York: Data Collaborative for Justice, 2023. 56p.

By Joshua Page and Christine S. Scott-Hayward

In this review of scholarship on bail and pretrial justice in the United States, we analyze how the field of bail operates (and why it operates as it does), focusing on its official and unofficial objectives, core assumptions and values, power dynamics, and technologies. The field, we argue, provides extensive opportunities for generating revenue and containing, controlling, and changing defendants and their families. In pursuit of these objectives, actors consistently generate harms that disproportionately affect low-income people of color and amplify social inequalities. We close with an analysis of political struggles over bail, including current and emerging possibilities for both reformist and radical change. In this, we urge scholars toward sustained engagement with people and organizations in criminalized communities, which pushes scholars to reconsider our preconceptions regarding safety, justice, and the potential for systemic change and opens up new avenues for research and public engagement.

   Annu. Rev. Criminol. 2022. 5:91–113

By Lauren Nickolls

This Library briefing paper provides an overview of police powers to release suspects from custody under investigation and on pre-charge bail. It also discusses the two major reforms that pre-charge bail has undergone in the last decade, first in 2017 and then in 2022.   When the police have arrested and detained a suspect but do not have the evidence to charge them, the suspect must be released. They can be released either on pre-charge bail (also known as police bail), “under investigation” (RUI) or with “no further action”.  

London: UK Parliament, House of Commons Library, 2023. 36p.

By the Criminal Justice Policy Program, Harvard Law School

Bail reform presents a historic challenge – and also an opportunity. Bail is historically a tool meant to allow courts to minimize the intrusion on a defendant’s liberty while helping to assure appearance at trial. It is one mechanism available to administer the pretrial process. Yet in courtrooms around the country, judges use the blunt instrument of secured money bail to ensure that certain defendants are detained prior to their trial. Money bail prevents many indigent defendants from leaving jail while their cases are pending. In many jurisdictions, this has led to an indefensible state of affairs: too many people jailed unnecessarily, with their economic status often defining pretrial outcomes. Money bail is often imposed arbitrarily and can result in unjustified inequalities. When pretrial detention depends on whether someone can afford to pay a cash bond, two otherwise similar pretrial defendants will face vastly different outcomes based merely on their wealth…. All of this builds on sustained attention from experts and advocacy groups who have long called for fundamental reform of cash bail.3 As policymakers across the political spectrum seek to end the era of mass incarceration,4 reforming pretrial administration has emerged as a critical way to slow down the flow of people into the criminal justice system. This primer on bail reform seeks to guide policymakers and advocates in identifying reforms and tailoring those reforms to their jurisdiction. In this introductory section, it outlines the basic legal architecture of pretrial decision-making, including constitutional principles that structure how bail may operate. Section II describes some of the critical safeguards that should be in place in jurisdictions that maintain a role for money bail. Where money bail is part of a jurisdiction’s pretrial system, it must be incorporated into a framework that seeks to minimize pretrial detention, ensures that people are not detained because they are too poor to afford a cash bond amount, allows for individualized pretrial determinations, and effectively regulates the commercial bail bond industry.

Cambridge, MA: Harvard Law School, 2016. 40p.

By Advancing Pretrial Policy and Research (APPR)

The pretrial system has, in recent years, become a focus of attention for governments, civil rights advocates, the media, and nonprofit organizations. Understandably so: it is the front door of the criminal legal system, and decisions made in the early stages of a criminal case have major impacts on everything that follows. As Berkeley law professor Caleb Foote wrote in 1956, “Pretrial decisions determine mostly everything.” This adage is true for individual cases: whether or not someone is detained while awaiting trial has major impacts on whether they are found guilty, whether they are sentenced to incarceration, and how long those sentences are.Unnecessary detention can also disrupt lives, leading to lost jobs and housing, family instability, and even increased likelihood of rearrest. It is also true for the system as a whole: virtually all of the growth in the U.S. jail population in the 21st century is attributable to pretrial incarceration. Housing people before trial costs county and state governments at least $14 billion annually. So, it is critical that we get pretrial decisions right. But in most of the country, the pretrial system is deeply flawed. There is an overreliance on custodial arrest instead of citations or summonses; release and detention are determined more by money than by judicial officers making intentional decisions about public safety or flight; defense counsel is not present, despite someone’s liberty being at stake; and pretrial services focus on monitoring rather than supporting people in the community. In addition, like the rest of the criminal legal system, the pretrial system suffers from systemic racism, with Black, Indigenous, and People of Color (BIPOC) disproportionately arrested and booked, subjected to higher financial conditions of release, and more frequently detained. These practices result in many people who could safely be released remaining in jail, often for long periods. And they do not enhance—and frequently undermine—community safety and well-being. Improving the pretrial system requires a comprehensive approach; we cannot focus on a single decision point or a single agency. And the problems will not be fixed with a single solution such as an actuarial assessment tool or even the abolishment of financial conditions. Rather, we need to look at the system as a whole, involve policymakers from all agencies, and engage the community meaningfully in the improvement process.

Silver Spring, MD: Advancing Pretrial Policy and Research (APPR) , 2022. 29p.