Bail Reform Coming to New York

Bail isn’t complicated: When a judge releases a criminal defendant on bail, the defendant (or the defendant’s friends and family) will have to put up a certain amount of cash as collateral. You skip town and run from the law, you lose the collateral. You keep showing up to court dates, it gets returned to you. The worse the crime, the bigger the amount of bail you might have to pay. Then again, the worse the crime, the less likely it is a judge will even grant it.

While the system sounds simple enough, there are a few problems.

Take Earl, a 70-year-old user who recently told his story to the Gothamist. “I’ve a drug history,” he said. “I’m not trying to waste the rest of my life behind bars.”

He’s unable to afford bail, but New York City allowed him to enter into a program called “supervised release.” A 2016 measure pushed the program into all of the city’s boroughs. Now, Earl can rest assured that he won’t forget a court date, because he continually receives phone calls to remind him. Supervised release isn’t wholly conducted over the phone, though. 

He also needs to head over to the New York City Criminal Justice Agency (CJA) in Long Island City to speak with someone about the conditions of his release to reassure them he will appear as scheduled..

The program’s opponents say that it defeats the purpose of letting repeat offenders out at all — after all, bail is meant as collateral. Supervised released doesn’t take anything away from participants who decide to run.

But in Earl’s case, the program worked wonders. It also saved taxpayers a boatload of cash that normally goes to jailing (sometimes temporarily) defendants who might not even be guilty. And being unable to afford bail or a subsequent criminal defense is a problem that disproportionately affects minority populations. Amanda Kaim is a social worker at the CJA. “Being in Rikers…isn’t going to benefit someone versus getting their needs met outside, she said.

Right now, only 4,500 people were granted admission into the supervised release program, but city officials would like to increase the number. They say that similar numbers of defendants are arrested on supervised release as are arrested while on bail. That means about 87 percent make their court dates.

That is why bail might be “reformed” mostly out of existence, said Miriam Popper, one of the program’s primary administrators. She said, “We’ve been able to show what we can do with a very least restrictive programming that offers support and helps people transition back into their homes in the community.”

Laws will change to bar judges from administering bail to defendants who are accused of criminal misdemeanors and even non-violent felonies, which has district attorneys and politicians worried that constituents might not see the benefits to the program so quickly. 

But the entire point of supervised release — and in some cases no restrictive measures put in place whatsoever — is to substantially reduce the disparity between minority populations, who are more likely to be in poverty, and wealthier defendants. Proponents of the new legislation believe that bail shouldn’t “punish” those who are living in poverty, or make it more difficult for the families of poor defendants to live on their own. These concepts are supported by numerous studies conducted all over the country.

Beginning with the new year, judges will be bound by law to release defendants using the least restrictive measures safely available. For some that may still be bail. For others that may be supervised release. Others still might be released without any additional measures put into place. Whether or not a defendant is a flight risk and the nature of the crime still matter most when making that determination.

Judges have other options to reduce the risk a defendant will commit additional crimes after their release: they can mandate electronic monitoring devices, confiscate passports, ban firearms, or even set curfews.

The budget for supervised release is set to grow during 2020. It will rise from $37.4 million to $116.4 million.

Popper believes in the program. She said, “We are working closely with the homeless outreach providers across the city so that the supervised release social workers can be in touch with people who are working with street homeless individuals every day and know where they are.” 

She added, “Research tells us that the pretrial phase is the most dangerous time for a victim of domestic violence.”

That’s why the program will likely undergo routine change and that bail reform is a work in progress.