By Rafael A. Mangual
After enacting a sweeping bail reform, New York lawmakers have drawn the ire of constituents who are troubled by the many stories of repeat and serious offenders—some with violent criminal histories—being returned to the street following their arrests. In the state’s biggest city, the public’s growing concerns are buttressed by brow-raising, if preliminary, crime data, amplifying calls for amending or repealing the bail reform. The operative provisions of New York’s bail reform severely limit judicial discretion in pretrial release decisions, increasing the number of pretrial defendants who are being released, often without conditions and without allowing judges to consider the risk that a defendant poses to the public. New York is now the only state that does not allow judges to consider public safety in any pretrial release decisions. This brief begins with an overview of New York’s pre-2020 bail law and the reforms that took effect on January 1. It then highlights the reform’s shortfalls and ends by proposing three changes intended to address the public’s legitimate safety concerns while preserving the spirit of the reform effort and addressing some of the inequities and inefficiencies inherent in a system that is heavily reliant on the use of monetary pretrial release conditions. The proposed changes include: • Empowering judges to assess the public safety risk posed by pretrial defendants, and setting out a process that allows them to detain dangerous or chronic offenders; • Allowing judges to revoke or amend release decisions in response to a pretrial defendant’s rearrest; and • In the intermediate term, setting aside additional funds or diverting existing funds to reduce the time a defendant stands to spend in jail if remanded to pretrial detention.
New York: Manhattan Institute, 2020. 14p.
