The Pros and Cons of New York’s Bail Reform

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled “The Pros and Cons of New York’s Bail Reform.” My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Insha Rahman, the Director of Strategy and New Initiatives at the Vera Institute of Justice; Greg Trainor, the founder of Trainor Law; and our moderator, John C. Richter, a partner at King & Spalding. After our speakers give their opening remarks, we will then go to audience Q&A. Thank you all for sharing with us today. Mr. Richter, the floor is yours.

 

John Richter:  Thanks, Greg. This is John Richter. Let me just introduce our two speakers today. Again, this is John Richter. I chair The Federalist Society’s Criminal Law & Procedure Executive Committee. And we’re very pleased to have two distinguished guests speaking today.

 

      Our first speaker will be Insha Rahman. She’s the Director of Strategy and New Initiatives at the Vera Institute of Justice. Ms. Rahman has formerly served as a public defender at The Bronx Defenders, so has personal insight and experience across the criminal justice space, and particularly with regard to bail legislation and policy and familiarity then with the recently passed reforms in New York State. She’s trained advocates and judges, defense attorneys and prosecutors on bail reform, pretrial justice, and reducing jail incarceration. She served from 2016 to 2017 on the staff to the Independent Commission on the New York City Criminal Justice & Incarceration Reform Commission, a commission chaired by a former Chief Justice of the New York State Court of Appeals that developed a blueprint to close Rikers Island. Please welcome Ms. Rahman.

 

      Our second speaker is Craig Trainor. He’s the founder of Trainor Law and serves currently as a criminal defense and civil rights attorney in New York City. He practices readily in state court and U.S. District Courts for the Southern and Eastern Districts New York. Prior to founding Trainor Law, he served as a New York City prosecutor, and as an associate attorney in a white collar criminal defense firm, and clerked on the Northern District of New York for District Judge Fred Scullin. So welcome to Mr. Trainor.

 

      In terms of our presentation today, they’re going to be focused, of course, on New York State’s groundbreaking bail reform. This is a reform that eliminated cash bail for almost 90 percent of the arrests and has resulted in a significant drop in the statewide jail population. I’ll be interested in the perspectives of our speakers with regard to how that has helped in terms of the state’s response to the COVID-19 pandemic.

 

      The measure took effect on January 1 of this year, and obviously, the debate between law enforcement, certain elected officials, the bail bond industry, and members of the public was significant before its passage and significant since that time. Ms. Rahman and Mr. Trainor will be speaking from different perspectives about this New York bail reform law, its impact, proposals to reform this reform, and why these rollbacks were passed, notwithstanding the advent of this global pandemic. So thanks to you both. I’ll hand it over to you, Ms. Rahman.

 

Insha Rahman:  Thank you. And thank you so much to The Federalist Society for holding this telebriefing and for the pleasure of getting to speak with you all. So I’m Insha Rahman. I work at the Vera Institute of Justice, and I’ve spent the past five years working on bail reform efforts, legislative as well as at the local level, training judges and prosecutors and helping to develop policies both here in New York, which is where I’m based, as well as around the rest of the country.

 

      I will just start by saying why the need for bail reform here in New York and what the impact of the reforms here could be on the rest of the country as well. You certainly don’t need me to tell you that the issue with bail reform and specifically the inability to afford the price of somebody’s freedom has been a galvanizing issue across this country on criminal justice reform writ large. It’s perhaps, for anybody working on criminal justice issues, one of the three top issues that comes up repeatedly as an area of focus.

 

      And the reasons why, both nationally and in New York, are obvious. Nationally, there are close to 400,000 people in jail across the country on any given day who are in pretrial because they have a bail amount set that they can’t afford. And here in New York, prior to bail reform back in 2018, the same story was true at the local level. There are jails in pretty much all of the 62 counties across New York State, and there were upwards of 25,000 people in jail on any given day. About 70 percent of them were people who were held pretrial.

 

      And so what we saw in that incarceration at the jail level was gross racial disparities in terms of who was incarcerated and who couldn’t afford bail. We also saw that the bail industry, as it was working, the bail bond industry essentially wasn’t doing their part. There was a fascinating exposé that came out about eight, nine years ago that showed that this one bail bondsman in New York City owed over $2 million in forfeited revenues to New York City in terms of underwriting bail bonds where somebody absconded or fled. And the bail bondsman who underwrote that bail didn’t actually pay back the missing or the forfeited bail amount.

 

      And in addition, just running the jails across New York State costs upwards of $2.5 billion each year, and those are costs that are borne by local counties, many of whom have found that just running the jail alone, not even sort of public safety writ large, but just the costs of the jail was somewhere between 5 to upwards of 12 percent of their annual county budget. So those were the drivers, really sort of exorbitant costs and inefficient and ineffective bail system, as well as racial disparities and just a significant number of New Yorkers in jail on any given day. That really was behind this effort for legislative reform.

 

      And so in 2019 in April, the legislature passed and Governor Cuomo signed a really remarkable set of reforms to bail that in -- for the first time in 50 years in New York State, it was the biggest overhaul to our bail system. And here’s what the new bail law actually was. So it’s essentially five provisions. The first is that it eliminated both money bail and the ability to put somebody in jail for the vast majority of misdemeanor and nonviolent felony offenses. As Mr. Richter said, it’s close to 90 percent of all arrests, and there are about 400,000 arrests that happen in New York State each year. About 90 percent would no longer be subject to either bail or pretrial detention as a result of this reform.

 

      The second is that it required for law enforcement, local police, to issue what are called appearance tickets, essentially citations or summonses in the vast majority of misdemeanor offenses where there wasn’t a complaining witness or a victim or a need for an order of protection or, for example, in a DWI case where somebody’s license needed to be suspended. Again, that was only for misdemeanor and the lowest level of felony cases, E felonies, that still impacted a significant number of arrests and essentially kept them not only out of having bail set and potentially jail but also just out of the traditional arrest to arraignment booking process. It meant that people were released much quicker after an arrest.

 

      The third change is for cases where money bail can still be set. So under this new law for most violent felony offenses and a handful of other offenses, including some domestic violence and sex related offenses that are misdemeanors or nonviolent felonies, judges could still set money bail but would have to consider a person’s ability to pay when setting bail.

 

      And the fourth part that goes along with that is for time immemorial, the kinds of bail that are set in New York State are cash bail and insurance company bail bond where you go to a bail bondsman to have to pay the 10 percent to underwrite the bail. So the fourth major provision in the new law is when bail is set, judges must actually set what’s called an unsecured or a partially secured bond.

 

      An unsecured bond is essentially that the person is released but with a bail amount hanging over their head where they don’t have to pay anything up front, but they’re on the hook for that full amount should they warrant and not return to court. A partially secured bond is in some ways like an insurance company bail bond going to the bail bondsman, but instead what you do is put down up to 10 percent of the bail amount with the court, and so long as you make all of your court dates, that 10 percent, or whatever the deposit amount is, is returned to you. If you don’t appear in court and your bail is forfeited, then you’re responsible for the rest of that amount, the 90 percent.

 

      And so essentially, that was a way of not directly taking on the bail bond industry and eliminating the bail bond industry entirely, but essentially another path to their demise by saying if you’re going to set bail, and then you set a partially secured amount, most people would opt to pay 10 percent to the court that they would get back as opposed to pay 10 percent to the bail bondsman that they would never, in fact, get back, even if they made all their court dates.

 

      And the fifth major provision in the new bail law was a limitation on the kinds of supervision or pretrial conditions that could be imposed. So electronic monitoring could only be imposed for certain kinds of felony offenses or for people who have misdemeanor charges who have prior violent felony convictions. And likewise, other sorts of conditions like that that really limit the scope of intrusion on a person’s liberty or pretrial freedom while returning to court.

 

      One important point that I’m sure is one of the things that many of you heard about New York’s bail reform law, which was no doubt controversial, in part because it really went further than any other piece of bail legislation in the country to ensure that people are not held either on money bail or held in jail pretrial. It has the most potential decarcerative impact, more so than New Jersey or Washington, D.C., or other places that we’ve seen do wholesale bail reform. But the most controversial provision was what wasn’t included in the reforms, and that was an explicit consideration of risk to public safety or dangerousness.

 

      And there’s a unique history here that’s specific to New York that isn’t really at issue in any other part of the country. So in the 1970s and 1980s, many different states included as a part of their bail law, in addition to allowing judges to consider failure to appear — which has been the provision judges can consider to set bail or to detain somebody since time immemorial —increasingly, judges were being allowed to consider risk to public safety as well. And the U.S. Supreme Court in 1987 in a case called U.S. v. Salerno essentially enshrined that a valid purpose of setting bail or pretrial detention is to ensure public safety and that judges could legally consider both.

 

      New York has been an exception in that the last time they considered adding risk to public safety to the bail statute was 1970, and the legislature decided not to. And the reasons why were essentially that there was concern that giving judges one more basis in addition to considering a person’s likelihood of failure to appear but also their potential or purported risk to public safety or dangerousness could be essentially way too broad and allow for more detention or more bail being used than intended. And there were concerns already, even just back then, about the racial implications of who is quote, unquote, “considered dangerous.” So that exact same conversation came up in the lead-up to these reforms that were passed in April 2019, and by a very, very narrow vote, essentially that dangerousness or public safety provision was not passed and was eliminated from the proposal.

 

      And so what New York had after April 1 of last year was essentially a money bail system that remained only for the most serious of offenses. In theory, it’s a way of back-dooring in public safety by still allowing judges to set bail on the most serious offenses for which we have public safety concerns. But for everybody else, people were released. And the consideration of setting bail was really still around, just simply failure to appear.

 

      I’ll note that we at the Vera Institute of Justice who played a pretty significant role in both advocating for bail reform and helping to draft the legislation, we were actually advocating for a different formula of what bail reform should look like. We were hoping for the entire elimination of money bail and to not leave it for the most serious offenses, and we were also advocating for judges to be able to consider only on the most serious offenses a very limited and careful definition of public safety which was whether somebody posed a risk to -- a physical harm to another person. So it’s not a broad public safety provision. It’s really specifically about physical danger to another person.

 

      That wasn’t the version of bail reform that passed. And we decided as an organization that’s been around for 60 years and has worked on bail for a long time, knowing that what we wanted to see from bail reform were essentially three things, that there were fewer people in jail as a result, that it addressed racial disparities, and that it didn’t compromise public safety. We recognize that even though this seemed like an imperfect formulation of what bail reform should look like, it’s one that we supported and championed in part because we knew those three goals would, in fact, be achieved by this means, even if it wasn’t an ideal version of the law itself.

 

      And so as I said, this is one of the most far-reaching reforms to bail that has been passed in this country. And we had predicted at the time that if given full effect, that the law would essentially result in about a 40 percent decarceration. So as I said, there are about 25,000 people in jail before bail reform passed. In 2019 as we watched jail populations drop because local counties were already doing much of these bail reform efforts already, even before the law formally went into effect, what we saw is that this time last year, there were about 21,000 people in jail. And if we fast-forward to today, we’re at about 9,000 -- oh, I’m sorry. We’re at about 13,500, which is an over 30 percent decrease in the overall jail population. So what we know is that the goal of reducing the number of people in jail, this new law has delivered that. And it formally went into effect on January 1.

 

      The second question is really the impact on public safety. And there was backlash that started pretty much immediately, in part because it was one of the more far-reaching reforms we’ve seen to bail. And the fear was especially brought about by law enforcement that this law in releasing so many people from jail would impact public safety. Quite famously, Police Commissioner Dermot Shea from New York City said, “Well, there’s been an uptick in crime in January of 2020, and that’s a direct result of bail reform.” And what he was referring to was a 17 percent increase in the overall arrests between January 2020 and January 2019.

 

      We actually took a look at long-run crime statistics and arrest numbers over the course of 10 years from the NYPD, and what we actually found is month to month, there is significant variations; 17 percent is actually not that much. We actually found another period of time in which the increase was 25 percent, and another period of time where the decrease was actually 32 percent. So that swing actually is something that is very common month to month in crime statistics, but that never actually got any attention before until the backlash to bail reform was gaining momentum and gaining steam. And it was essentially because we had a political fight on our hands. Otherwise, those usual ups and downs of crime statistics were never really paid any attention.

     

      And what we also saw in other parts of New York State where we had been following crime statistics such as Buffalo — which is Erie County; it’s the second biggest city in New York outside of New York City — crime rates have actually gone down since the beginning of the new law in January of this year.

 

      What we’ve also seen is cost savings. So as I said, we’ve seen jail populations decline by over 30 percent, and we did an analysis of just simply Erie County, again, the second biggest city in New York State. And if the local county was to downsize and rightsize the number of corrections staff commensurate with the drop in their jail population, they would actually save $6.5 million a year in costs of their local county budget based on the lower numbers of people in jail.

 

      But all of that wasn’t quite enough to fight off the backlash. And what we also found is that this backlash was not only led by certain members of law enforcement and local prosecutors but was also funded from the bail bond industry and the national bail bond industry, including the [American Bail] Coalition. We found that there was money being given to things like the New York State Sheriff’s Association to fund an online campaign and backlash, and I would say misinformation and fearmongering about the new law and what it was and wasn’t doing.

 

      All of that put pressure on the New York State legislature, which was in a unique position in that they had only recently turned all Democrat. Our senate has historically been right on the line between Republican and Democrat, and just finally went Democrat in 2018. But they were still nervous about some of their seats that are up for reelection. Everybody in the senate and the assembly is up for reelection in November of this year, and they were concerned that they would lose their democratic majority unless they responded to some of the backlash to bail reform, which was really coming from all corners, including democratic corners, by the time the budget here in New York passed, which was just on April 3.

 

      As so what we saw in the backlash was just some minor rollbacks to the new law that essentially allow for a handful more offenses to be considered eligible for bail as well as some new provisions under the law in terms of people who are on probation or parole and get arrested for a felony are now allowed to have bail set regardless of the charge, and a few other tweaks like that. But overall, I would say New York has managed to weather the backlash. What we’ve seen in the moment of the backlash was overtaken by coronavirus and COVID-19 and the crisis that that created.

 

      And I just want to stop and end by saying one little story out of Long Island where there was incredible backlash to bail reform by the local press and others. And there was a story that came out about two weeks ago about the two sheriffs in Long Island of Nassau County and Suffolk County. And both were talking about how bail reform has actually led to their jail population declining by about a third, which made it possible for them to create the space to actually do social distancing and manage an outbreak of coronavirus in their local jails because bail reform had already helped them do that.

 

      So that’s the interesting upshot of bail reform, even among communities that didn’t actually support these changes and were deeply concerned. In the moment of this crisis, we found that bail reform was actually a very helpful thing in New York, and that at least in our local jails, other than Rikers Island, we haven’t had the kind of awful, awful outbreak that we’re seeing in other parts of the country, both at the jail and the prison level.

     

      So I’ll stop here and turn it over to my colleague, Mr. Trainor, who I know takes a different view of this reform. And hopefully we can have a little bit of back and forth and then welcome any questions.

 

Craig Trainor:  Thank you for having me. Thank you to The Federalist Society for hosting this teleforum. I hope everyone is safe and healthy.

 

      Before I begin my remarks, I want to make clear that the position I take in this discussion, that bail reform in New York has been a failure and inimical to public safety, is my own position as a private citizen. Obviously, my opinion is informed by my work as a defense attorney working within New York State courts and my observations as a New York City resident.

 

      But when it comes to my criminal defense clients, to be clear, I want them released on their own recognizance, and I want to ensure they have every benefit of the current law, which I have been arguing in court as a normative matter since April 2019 when the law was passed, and certainly since January 1, 2020, as a binding legal matter when the question of the conditions of release for my clients are before the court. I provide that disclaimer because some friends and colleagues who do this work had expressed surprise that I’d been so open about my personal objections to bail reform, despite these same people often expressing a similar sentiment in private.

 

      With that said, I’ll ask the question, pro and con, is bail reform working? Well, that depends on how you define working. If it means that we want people who are committing crimes and have been accused of committing crimes to be at liberty while charges are pending against them because they may not have the financial resources to bail out, then it has been an unmitigated success. Large numbers of defendants, no matter their financial circumstances, are being released, rich or poor. Jail population, pre-corona figures, is down 30 percent as a result of the law. So by that measure, it is working.

 

      On the other hand, if one defines working to mean that we want both a reduction in the numbers of those committed to pretrial detention because of the lack of financial resources and want to safeguard public safety, which is an appropriate tension to balance, which all other 49 states in some fashion and the federal criminal justice system consider and balance on a daily basis, then it has been a failure. Public safety is the loser in this equation. And we know this not only because of the spike in crime, particularly from released defendants with pending charges — and I’ll get to the latest statistics available in a bit — but from the very omission in the bail reform statute. That is, it fails to empower judges to restrict the liberty of criminal defendants who pose a threat to public safety or danger to the community.

 

      Bail reform was in part the result of good intentions. But since this is a Federalist Society teleforum, I don’t have to get into the problems of the politics of good intention where the policy makers stated purposes are more important than the real-world consequences of said policy. Nevertheless, the goal was noble and rational. That is, the cash bail system did, in fact, create a two-tiered system of justice. It is also true that it fell disproportionately on communities of color in New York. People with financial resources could bail out and defend their cases from the outside, which incidentally, I can tell you does have a beneficial effect on the outcome of many criminal cases. And people without financial resources, however, those who cannot afford to bail out, would stay in custody while they awaited trial.

 

      Well, that doesn’t seem fair. And frankly, that’s not fair. To eliminate this disparity, the New York legislature eliminated cash bail in 90 percent of cases. I, for one, would have suggested eliminating cash bail in all cases if we’re being honest. If we seek to eliminate a two-tiered system of justice, then let’s eliminate a two-tiered system of justice. Remove financial considerations from the equation entirely. That would have the added benefit of putting the bail bond industry in New York out of business, the same people my colleague was critical of earlier in her remarks. And I’m happy to see them go. I’m no fan. There’s no shortage of stories in the New York City criminal courts about the predations of unsavory bail bondsmen.

 

      But what does this tell us that the legislature did not do? What do we learn from the fact that they kept cash bail in place for what they deem are the most serious and violent offenses? That tells us that they wanted to keep certain defendants in custody while they awaited trial because, ipso facto, they are dangerous. So they let judges continue to set cash bail with an insurance company bond alternative and the newly added condition of partially secured bail bond through the court, which was actually a positive aspect of the bail reform law, to keep defendants in custody.

 

      At bottom, this is a public safety consideration, more so than whether a defendant will return to court. So the legislature did not have the courage of its collected convictions. I submit what real reform, practical, judicious, and wise, would have permitted is the elimination of cash bail while empowering judges in considering conditions of release to determine whether a defendant, no matter what crime he or she is charged with, poses a danger to public safety and either remanding the defendant into custody or releasing the defendant into the public, depending upon a judicial finding of fact. That is what responsible bail reform would have looked like.

 

      And that is what our neighbor New Jersey has done to great effect while reducing pretrial detention and ensuring public safety. In New Jersey, the pretrial detained defendant population plummeted from 7,173 inmates on January 1, 2017, when New Jersey bail reform took effect, to 4,967 on January 31, 2017, resulting in a decrease of about 30 percent. Moreover, state police crime statistics show that from January to September of 2018, as compared with the same period in 2006, there was a 32 percent reduction in homicides, 13 percent reduction in rapes, 37 percent reduction in robbery, 18 percent reduction in assaults, and 30 percent reduction in burglary. So as a correlative matter, if not a causal one, you can have more defendants at liberty, where warranted, and still protect the community from dangerous individuals.

 

      So the question I put to Insha and proponents of New York bail reform is this: Why have we not allowed judges to consider dangerousness when ruling on conditions of release for the accused? What are we afraid of? Now, to be clear, I readily concede detaining a presumptively innocent person on the basis of dangerousness pits his individual liberty interest against a societal interest in safety. That, to me, is the most compelling objection.

 

      But as was alluded to previously, United States v. Salerno, the Supreme Court held in a challenge to the Federal Bail Reform Act of 1984, which was enacted to deemphasize the use of money bail in federal courts and thus permit federal district judges to detain defendants on the basis of future dangerousness, that the governmental interest in preventing crime by arrestees is both legitimate and compelling, and in appropriate circumstances, outweighs the liberty interest of the presumptively innocent. The court deemed pretrial detention a regulatory matter rather than a punishment matter, and thus Congress and the states can readily employ pretrial detention as a means to prevent danger to the community, which is a legitimate regulatory goal.

 

      So to be clear, and it hasn’t been raised, but there is no constitutional question whatsoever on detaining defendants on the basis of dangerousness. Indeed, 49 states have followed suit, and the Federal Bail Reform Act of 1984 was, in fact, modeled on the District of Columbia’s Reform and Criminal Procedure Act of 1970, which was the first statute that allowed judges to consider a defendant’s dangerousness to the community in addition to flight risk as a reason for denying pretrial release.

 

      I must add that in New York State, we have a preventive detention regime. We’ve had it for decades. It’s for juvenile delinquents. The Family Court Act, Section 320.5(3), permits judges to detain juvenile defendants pretrial if they present a risk to the community. This law, too, was challenged and made its way to the Supreme Court, where in Schall v. Martin, a 1984 case, the Court upheld the statute, and actually the Salerno Court relied in part on Schall for its decision. There, the Court held that the New York statue served the legitimate state interest of, quote, “protecting society from the hazards of pretrial crime,” end quote, and did not violate a defendant’s due process rights. Justice Rehnquist delivered the opinion of the Court in both cases, for those that are interested.

 

      Unlike the 1970s when New York had concerns about judges having the discretion to detain people upon dangerousness, we now have robust precedent from the states and the federal system for how to appropriately go about doing that, including the appropriate procedural safeguards where that finding is made. If we subscribe to Justice Brandeis’s view that states are the laboratories of democracy, we should have no problem looking at what the other states have done to ensure that an individual’s liberty interest is protected, and the community’s interest is likewise protected, and balancing that delicate equation.

 

      Now, obviously, any pretrial detention regime must have procedural safeguards in place, and those would be a detention hearing with the right to counsel, the right to give testimony, to present witnesses, and offer evidence to ensure detention is warranted as the least restrictive condition necessary to accomplish the regulatory goal of protecting the community from dangerous individuals.

 

      Now, I’m going to give some statistics but remind you that our bail reform prevents judges from setting bail for all defendants charged with misdemeanors except for sex offenses, domestic offenses, and recently, hate crime misdemeanors, as well as for most nonviolent felonies. There are two previous violent felonies of the robbery and burglary variety which are extremely problematic which judges cannot set bail on, either. One of those was reformed. In any event, remand is prohibited on all misdemeanors without exception and for most nonviolent felony offenses.

 

      As Insha alluded to from the start, stakeholders and crime-weary citizens were deeply concerned about what this reform meant for public safety, and many clamored for immediate reform of the reform. This was met with a loud rally by proponents of the law, including Bronx Democratic Assemblyman Michael Blake, whose response to his fellow assemblymen who wanted to consider the public outcry and revisit bail reform, quote, “I don’t need any fake-ass legislators who are allowing fear-mongering to try and go after our people,” end quote. Okay. And when the Speaker of the New York Assembly, Carl Heastie, was confronted by reporters about his views on reexamining bail reform, he responded it was too early to consider any changes because “no one has given me, you know, real hard data about how it’s working.” Well, now he has hard data.

 

      And I want to conclude my remarks with on March 5, 2020, Mayor Bill de Blasio, a man of the left, a committed progressive, so it may surprise you, he has also been a vocal critic of bail reform, looked on approvingly as NYPD Commissioner Dermot Shea publicly shared proof that bail reform is not working. Again, that depends on your definition. At the very least, it is harming public safety. Crime was up about 12 percent over the first three months of 2020, with more than 2,500 major felonies committed in that quarter.

 

      Since January 1, 482 suspects who have been arrested for serious felonies were released without bail, only to commit another 846 new crimes. Of those 846, a third of them were characterized as the most serious, murder, rape, robbery, felony assault, burglary, grand larceny, and grand larceny auto. As if speaking directly to Speaker Heastie, the Commissioner said, quote, “Each number represents a victim,” end quote. All of the 482 suspects could have had bail set on them prior to January 1, so they could have been incarcerated without the ability to commit these crimes. Crime in January 2020 spiked 30 percent from January 2019.

 

      Now, you must keep in mind that in New York City, we had seen a historical drop in crime prior to bail reform. Crime in February of 2020 spiked 20 percent over the previous year. In total, the first two months of 2020 saw 803 more serious crimes committed than the same period in 2019. Specifically, car thefts spiked 65.5 percent from 943 to 1,561. And 685 more robberies were reported for a 25 percent increase.

 

      Now, this is interesting. Second degree robbery is what we call a violent C felony in New York, and this has been a major concern because bail cannot be set on a person accused of forcibly stealing property when aided by another person present. That’s second degree robbery. That’s a C violent felony, and if convicted, a defendant faces a minimum of 3.5 years in state prison. So to put it in real terms, one can rob someone, get arraigned, and walk right out of court. As some of my younger progressive colleagues like to say, “Let that sink in.”

 

      Burglaries jumped by 21.9 percent with 533 more reported. Like second degree robbery, a person accused of second degree burglary, that is, where he knowingly enters or remains unlawfully in a building with intent to commit a crime therein and the building is a dwelling — a dwelling is defined as a building which usually is occupied by a person lodging there at night or what we might call our homes where our children sleep at night — those accused of those crimes cannot have bail set on them under the January 1, 2020 bail reform. And since we do not consider danger to public safety, they too walk out of the courthouse. To quote one judge who will remain nameless, “This is insanity.” Thankfully, the legislature and the governor corrected this.

 

      I think of the most egregious and indefensible provisions of the bail reform law, this ranks at the top. Four hundred and eighty-six additional grand larcenies occurred in the first quarter of 2020. That’s a 5 percent uptick. One hundred and seventeen more assaults were reported for almost a 2.5 percent increase. And lastly, more than 11 percent of felony arrests didn’t go forward because district attorneys declined to prosecute. That is a rise of 34 percent from the same period last year. So this is significant. This is likely due to new discovery provisions included in the bail reform legislation, which I confess I have no quarrel with those discovery provisions.

 

      In the second half of March, there was a drop in most crimes, which is safe to say is due to the unprecedented coronavirus pandemic as there’s a public health order in place in New York to shelter in place, which has kept most New Yorkers indoors. But that decrease couldn’t wipe out the uptick from the prior weeks and months. Notably, burglaries after the first quarter of 2020 remain up by nearly 26.3 percent. Stolen cars increased by 61 percent, or an additional 187 cars stolen. This, too, is likely attributed to the largely empty streets in New York City.

 

      If there is any doubt about the NYPD’s position on this increase in crime, Commissioner Shea has said, quote, “We’re seeing significant spikes in crime, so either we forgot how to police New York City or there’s a correlation with bail reform.” He continued, quote, “If you let out individuals that commit a lot of crime, that’s precision policing in reverse. And we’re seeing the effects in a very quick time, and that is why we’re so concerned,” end quote. More emphatically, the NYPD official press release said simply, quote, “Criminal justice reforms serve as a significant reason New York City has seen this uptick in crime.”

 

      New Yorkers cannot say they were not warned. The New York Post has been doing God’s work on this front since 2019. It is deeply unfortunate that the alarms they sounded were ignored, but more so because they were right. With that said, I’ll turn it over, given the amount of time we have. And if anyone’s interested, perhaps in the Q&A, I’d be happy to discuss some pretty noteworthy cases of why bail reform without a provision to consider a defendant’s dangerousness is failing New York. Thank you.

 

John Richter:  Okay. Now let’s go to audience questions.

 

Marc Levin:  Hi, it’s Marc Levin with TPPF and Right on Crime. Thank you both for a very informative presentation. One question that concerns something that wasn’t really covered which is pretrial services and supervision, to what degree — and that was implemented pretty significantly with the New Jersey bail reform — to what degree do the speakers think that might be helpful in addressing particularly reducing public safety risk as well as failures to appear?

 

Insha Rahman:  So I’ll jump in. I’ll start, and Craig, of course, please also follow up. So unfortunately, when the legislature passed bail reform here in New York, they didn’t set aside money for pretrial services to be improved. A number of counties took it upon themselves to build out pretrial services. New York City has a very robust pretrial services program that’s been in place since 2016. And across the rest of the state, there’s also some good pretrial services programs and some that are less developed.

 

      Here’s what we know is in the places across New York State where we’re actually keeping court appearance data, the overall court appearance rate for everyone is 86 percent. For people in pretrial services, it’s 91 percent. We have very high court appearance rates in New York City that has for decades now had court reminders and things like that. We are helping to collect data on court appearance rates in the rest of the state. Those numbers are not yet public, but from our -- again, these are short-run statistics from January through March. What we’re seeing is that there’s been certainly no increase in failures to appear as a result of bail reform, and perhaps in some places actually more court appearance because counties have spent money investing in pretrial services.

 

      I wanted to address one thing that Craig said about New Jersey since he pointed out New Jersey as a model that perhaps New York should have followed and chose not to. New Jersey loomed large, and the experience of New Jersey loomed large in New York State considering what version of bail reform would work. And also history, you’re right, that when we looked at dangerousness and public safety issues back in 1970, we didn’t have precedent or history to inform us of how would it work.

 

      If one of the main goals of bail reform is to reduce the number of people in jail, then what we have seen historically is that jurisdictions that have included a public safety provision like the federal system, the use of pretrial detention has actually increased. Before the 1984 Federal Bail Reform Act, which allowed for judges to consider risk to public safety in the federal system, about one out of three individuals pretrial were detained. After Salerno and where we are now in the federal system, about two out of three individuals are detained pretrial. We have a pretrial detention rate of upwards of 66 percent in the federal system across the country.

 

      Likewise in New Jersey, that essentially eliminated money bail for the vast majority of offenses and where judges could for the first time under bail reform, which passed and went into place in 2017, what we saw is that overall, the jail population declined by 30 percent, as Craig said. But racial disparities in terms of who remained in jail pretrial did not shift one bit. And it’s of course no surprise to all of you all that the vast majority of individuals who remained in jail after bail reform in New Jersey were African American and Latino individuals. And so that’s really the concern is race. And we wanted to make sure that a version of bail reform passed that explicitly addressed the concerns in the racial disparities that have remained even in jurisdictions that have done bail reform.

 

      Likewise in New York, we have done an excellent job of reducing the juvenile detention population. We’ve done that over two decades, and while we have reduced it by over two-thirds, our racial disparities have, in fact, again gotten worse. And one, again, correlation could be because when you allow for judges to consider public safety without a very clear and narrowly defined fact finding of what constitutes a concern about public safety, it essentially tracks along racial and ethnic lines. And those are a very big concern. Mr. Trainor talked about Assemblymember Michael Blake saying, “We have to save our people.” It should be of no surprise to you all that he is an African American legislator, and when he’s talking about “our people,” he was talking about black and brown New Yorkers.

 

      So I know that that’s a tangent to the question about pretrial services. New York didn’t choose to invest necessarily in pretrial services, but local counties have. And again, some of the, I think, important restrictions in the New York law that we haven’t seen in New Jersey or in other places help safeguard from overspending and wasteful spending on pretrial services that impact unnecessarily pretrial liberty and freedom and cost local counties a lot of money. New Jersey is spending upwards of $60 million a year on pretrial services alone, and those are costs that don’t essentially need to be spent.

 

      The most effective pretrial services are things like court reminders and court notification, not electronic monitoring. And so those are some of the decisions that New York made in terms of passing not only the legislation but conditions about pretrial services to prevent from over-conditioning and over-monitoring, much in the way that we’ve seen in New Jersey.

 

Craig Trainor:  Yeah, I would just say that with respect to -- I practice primarily in New York County, otherwise known as Manhattan. And I will tell you we have excellent pretrial services. Supervised release is a program we have where individuals who are released but do present a risk for failure to appear, do present a risk for a variety of other reasons are given services. They are given reminders. They are given metro cards to get to and from court on their next court date. They meet with social workers. They are referred for further services.

 

      It is, at least in New York County in a program called CASES, it’s an organization that does excellent work. I have used them to great effect in negotiating favorable plea dispositions for clients who were interested in taking pleas, non-incarceratory ones, and really getting services that were conducive for them to not recidivate and to live a law-abiding life. So the resource question -- New York, there’s always an issue of resources. And now, given the pandemic, I’m not optimistic that the funding will be there any time soon. But with respect to the local level, certainly Manhattan is a model for how it’s done, and it’s worked to great effect.

 

      I see time is limited, but I would be remiss if I didn’t get one point in that was raised with respect to the extent that the goal of bail reform is to reduce prison population. I suppose that is in and of -- it’s unclear to me that that in and of itself is always an unmitigated good to the extent that there are public safety concerns. And likewise with racial disparities, they are always troubling, but in and of itself, we really -- I don’t think we’ve ever had an honest exploration for why that is. And I think that too is part and parcel of any responsible bail reform. Thank you.

 

 John Richter:  Okay. Let’s go to the next question.

 

Mary Maxwell:  Hello. Mary Maxwell in New Hampshire. I’ll be brief. That was a wonderful debate. I want to say that as a citizen, I’m not interested in the interest groups’ desires, be they the bail bond industry, local prosecutors, law enforcement, I think you mentioned the Democrats and Republicans trying to get the balance, much less the media, their particular needs or rights to do this. I’m only interested in, as you say, the liberty principle and the safety and the slight risk problem.

 

      But I believe the tone was set by the Albert Florence case. I think that’s about seven years ago. And it ended up saying you can be strip searched for a traffic violation. To me, that put all the emphasis on the interest groups because in that case, the interest group was the jailors who would be worried they might be touching somebody who’s going to blow them up or whatever. And that should never have happened. That case needs to be overturned. Thank you.

 

Craig Trainor:  This is Craig. I don’t have much to say about that, so I’ll defer to Insha if she has any comments.

 

Insha Rahman:  No. Likewise, thank you for that comment.  

 

John Richter:  Okay, now we’ll go to the next caller.

 

Robert Efroymson:  Robert Efroymson from Santa Fe, New Mexico. I actually was a prosecutor in New York quite a while ago. And I really enjoyed hearing from both of you. The thing that I didn’t hear was there’s a sort of a sense that I have that people have a learning experience when they come into contact with the criminal justice system. And what I feared, especially when I heard that robbery two and burglary two were not going to be available was that the thing that’s being communicated to the public, or that portion of the public which is inclined to commit crimes, is that these aren’t serious offenses and we aren’t taking them seriously. I mean, maybe catch and release is an overused term, but it seems apropos here. And I just wondered if you had any comment on that.

 

Insha Rahman:  Sure. So I think to the extent that we use policing to send messages, you should know that the vast majority of arrests in New York City are, in fact, misdemeanor arrests. Of all cases arraigned, 84 percent are misdemeanors. And those are the vast majority of offenses for which bail is no longer appropriate or able to be set. So it’s the drug offenses, the offenses for trespass, and going on the subway without paying fare, and things like that. And so the signal that was sent was essentially we’re no longer going to criminalize poverty or conduct that perhaps has a better response, which is a public health response, or one where we don’t need to incarcerate.

 

      And the two offenses, robbery in the second degree, the only subsection that was taken out of being a bailable offense is if two or more individuals forcibly take property from another. If there is any physical injury to that person, then it actually falls into the other subsection of robbery in the second degree, which is still a bailable offense.

 

      So again, the bright line here and the signal that’s being sent is we are still certainly sending a strong message about accountability for offenses where there is a physical safety issue for others, but not for the offenses that, again -- what’s the most common robbery in the second degree, sort of accomplice liability offense? It’s two kids running up and taking an iPhone or something like that where it’s obviously conduct we don’t want to say there’s no consequences for that, but do we need to have somebody be incarcerated as a result of that? No, there’s other ways to send signals about accountability.

 

      Likewise, for burglary in the second degree which was the other offense that was made no longer bailable, there’s a subsection of burglary where if there’s a physical injury to somebody, bail still can be set. The one that this was correcting for was in fact prosecutors often charge wrongfully in New York. If somebody came into the lobby of a building and, say, took packages, because that building happened to be a dwelling not just a commercial space, it was suddenly a violent felony offense even though there was no violent conduct alleged.

 

      Again, it’s not as if there aren’t consequences. People can still be prosecuted. There’s still potential jail or prison time. There’s certainly those offenses for which supervised release and pretrial services is often imposed, but it’s just simply that setting bail when there is no conduct -- where there’s actual physical harm or physical injury alleged to somebody else, that’s really the message that we’re sending.

 

      Again, I think there are questions about what kind of accountability is enough and your own personal views of that. But when it comes to saying we have some values about when we use incarceration, and I think very much in New York, one of the driving values was to use incarceration less. Whether or not that in and of itself is a good outcome, that’s a normative question of judgement. But it was certainly one of the driving factors here in New York.

 

      And to the extent that we’re saying we can have alternatives that are not incarceration to respond to behaviors that we don’t like, we’re not decriminalizing the behavior entirely. There’s still arrests, there’s still prosecution, there’s still accountability. We’re just saying we’re taking incarceration, at least pretrial, off the table for those offenses.

 

Craig Trainor:  So I think the signal is just the opposite. We often hear the distinction between misdemeanors and felonies, and those are important distinctions. But the reality is you can have somebody -- punch somebody in the face unprovoked on a New York City street, and providing that they did not break bones in the individual’s face, they will be arraigned for an assault three, which is an A misdemeanor, and they will be released.

 

      I see we’re running short on time, but briefly, the case of Tiffany Harris is a well-known example in New York of the excess and the danger of bail reform. Ms. Harris was arrested on December 27, 2019, for slapping three Jewish women in Brooklyn and yelling — I’ll omit the expletive — “You [expletive] Jews.” She was released without bail because judges began to implement bail reform as a discretionary matter back in 2019. On December 29, 2019, she was arrested again for attacking a woman in Brooklyn, released again without bail, and placed on supervised release.

 

      When she went in to check in with her social worker from supervised release, there was an altercation and physical contact resulting in Mayor de Blasio’s office calling the court, intervening, to have the woman remanded for a 72-hour psych evaluation because that is the only way he could have protected the public from this woman who, no doubt, needs services, probably mentally ill. But the fact that judges are deprived of the discretion to remand somebody who presents a clear and present danger is inexplicable.

 

      And I would just add that Attorney General William Barr came to New York because we had a previous uptick at the end of 2019 of anti-Semitic attacks. I actually wrote a piece for it in the American Conservative, if anyone is interested, and how that relates to the retreat of broken windows policing, which is all part of a larger project of deincarceration.

 

      In any event, Attorney General Barr visited Jewish leaders in Brooklyn and said, “Look, if the state will not protect you, the federal government will.” And on January 28, 2020, the U.S. Attorney’s Office in Brooklyn unsealed the criminal complaint against Ms. Harris. They did the same for a man named Gerod Woodberry who was in a pattern of robbing banks, kept getting released under state law because he was only charged with grand larceny, and finally the federal government had to intervene.

 

      So I’ll conclude on this note. The fact that we have to -- I’m sure that many of us are federalists. Many of us believe in federalism. And the fact that an individual, to be held in custody so his predations can be prevented pretrial, has to be arrested and charged federally and held in federal jail after his initial imprison is what it takes to keep a habitual bank robber in custody under the current bail reform in New York, arguably upsetting structural balances between the states and the federal government by hastening this sort of intervention on ostensibly state matters. There are many consequences which I do believe will materialize as the days, months go on. And I ultimately am optimistic that we will have a dangerousness component added to New York State’s bail regime.

 

Greg Walsh:  Well, on behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.