Reforming New York’s Bail Reform: A Public Safety-Minded Proposal

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Rafael Mangual has this issue brief for the Manhattan Institute with the above title.

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 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.

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Within a month of taking effect, New York’s bail reform led to the release of a number of dangerous defendants, many of whom were later rearrested for offenses committed while awaiting the disposition of their cases. Among those defendants was Arjun Tyler, who allegedly tried to rape a woman in Brooklyn after being released from pretrial detention pursuant to New York’s bail reform.[18] Then there was Jordan Randolph, who was released after a January 1 arrest on charges relating to drunk driving. Apparently while awaiting the disposition of that open case, he is alleged to have rear-ended the vehicle of a recent college graduate, Jonathan Maldonado, while intoxicated. Maldonado was killed. Randolph  allegedly taunted officers on the scene of the fatal crash, per news reports, telling them, “I’ll be out tomorrow.”[19] He was released the next day. Another case: in defiance of the state’s bail reform, one Long Island judge refused to release an alleged bank robber, Romell Nellis, without bail. His decision was promptly overturned by another judge who released Nellis on an electronic monitor—only to have Nellis cut off the monitor and abscond shortly thereafter.[20]

The steady stream of troubling releases has been accompanied by a sharp uptick in New York City crime—an uptick that Police Commissioner Dermot Shea publicly linked to the state’s bail reform law.[21] Through February 16, 2020, New York City has seen increases in a variety of offenses: Robbery (32.3%), Felony (6.8%) and Misdemeanor (2.8%) Assault, Burglary (21.1%), Grand Larceny (13%), Grand Larceny Auto (64.3%), Shooting Incidents (21.3%), as well as both Transit (36.2%) and Housing (3.6%) crime.[22]

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Conclusion

Like many public policy issues, bail reform is complex. Many of those who supported and pushed for the bail reforms in New York sought to address real problems worthy of serious consideration. Addressing these problems, however, involves trade-offs and calls for a balancing of legitimate concerns about justice with equally legitimate concerns about public safety. Based on the preliminary and foreseeable effects of New York’s reform, a strong case can be made that the Empire State’s current bail regime creates an imbalance in favor of criminal defendants, to the detriment of the public’s safety.

By laying out the contours of the pre- and post-reform environment, this paper outlines and provides evidentiary support for three overarching goals (to be pursued in the immediate and intermediate terms) that should inform reforming New York’s bail reforms. Adopting proposals in line with the recommendations made herein will not eliminate all the risks associated with increasing the rate at which criminal defendants are released pretrial. Even with provisions that preserve or grant judicial discretion to remand defendants to pretrial detention or impose release conditions on public safety grounds, jurisdictions that have adopted bail reforms have endured hundreds of violent acts committed by pretrial defendants.[46] The stakes involved in these sorts of criminal-justice policy decisions demand that, whatever changes are made to New York’s current bail laws, policymakers and analysts continue to assess whether, how, and to what extent bail policy is affecting the public’s safety.

The reforms in this paper may not satisfy all supporters or opponents of New York’s bail reform, but they are offered as a potential compromise that will help mitigate at least some of the risks inherent in the laws governing pretrial release today.