Like many states, New York has a bail law that is half a century old. The legal rules that in 2010 made it possible for 16-year-old Kalief Browder to be jailed on Rikers Island for three years for allegedly stealing a backpack—just because his family couldn't pay $3,000 in bail to get him out—all remain on the books.
Criminal Justice reformers around the country are admonishing the Empire State to change its system, arguing that having to pay money to get out of jail unfairly targets the poor. And a newly elected Democratic majority in Albany is eager to heed those calls, as lawmakers this month pore over ther finals of the detail bill that would make New York the third state to virtually abolish money bail.
Yet a new report analyzing more than 5 million criminal cases in New York City since 1987 suggests the city has already done a better job of slashing its use of bail and jail than nearly any other urban area in the United States.
And that's because of a culture change among judges and other decision-makers, not any change in statutes or court rules.
Over the past three decades, the percentage of cases in New York City in which bail is set has dropped from 48 percent to 23 percent, while the rate at which defendants are released without having to pay money has jumped from 50 percent to 76 percent, according to data released Thursday by the New York City Criminal Justice Agency. The approximately three-quarters of defendants “released on their own recognizance” in the city (meaning free to go without cost) compares with a national average of about 45 to 50 percent and as low as 11 percent in New Orleans, according to one study.
As a result, New York City’s jail population has dropped from nearly 22,000 in 1991 to about 7,800 this year, making it the least incarcerated major city in the United States—by a long shot. Much of that improvement has occurred in just the past few years.
Surprisingly, New York’s lower reliance on bail hasn’t led to defendants not showing up in court. The city’s return-to-court rate is 86 percent versus about 75 percent nationally.
This seismic change in how the nation’s largest city handles bail and jail is the result not of top-down change in the system but of thousands of small shifts in courtrooms every day. Whereas California, New Jersey, Maryland and a handful of other states have tried to eliminate money bail legislatively or through a court order—with mixed success—New York has done so organically, potentially offering a model for other large cities in otherwise recalcitrant states.
Judges, more aware than ever of their full toolbox of alternatives to bail—including a "supervised release" program championed by Mayor Bill de Blasio that lets them release defendants under monitoring—have become increasingly willing to take on the risk of freeing people without bond. They have also begun to understand how the “frequent fliers” in criminal court often have mental-health and housing issues that are only exacerbated by setting bail and sending them to jail, said George A. Grasso, supervising judge of the Bronx Criminal Court and of all arraignments in New York City.
Prosecutors, in most parts of the city at least, have somewhat reduced how much bail they ask for in low-level cases. And a strong cohort of public defenders in the Bronx and Brooklyn have fought excessive pretrial detention, while making sure to bring community voices into the debate.
Then there’s the Kalief Browder effect: a media culture that has been focusing more on wrongful incarceration than on sensational, outlier cases of defendants freed from jail who go on to commit further crimes. (Browder was a Bronx teen who later committed suicide in part because of what he endured in jail.)
“To the folks around the country who are trying to change statutes, I try to emphasize that a new law works best when it’s codifying existing culture change,” said Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute, an advocacy group based in Rockville, Maryland.
As with many criminal-justice issues, not just bail, she said, so much depends on the discretion of the judges or police officers or prosecutors actually implementing policies.
For one, there’s a centuries-old culture in this country of setting money bail, often based on a schedule of bail amounts that helps courts get through their crowded dockets quickly. Judges and prosecutors also tend to think of setting bail as a relatively minor, preliminary decision, even though a short stint in jail may cost defendants their jobs and, according to research, has a profound effect on how their cases will turn out.
All of that takes a lot of on-the-ground work to undo, said Greg Berman, director of the Center for Court Innovation in New York. “Legislative reform has its attraction,” but decision-makers “reject it all the time by finding workarounds ... There’s never been a law written so well that it covers every situation.”