New York’s bail laws are a bust

It’s the speech Albany refused to listen to — or heed. 

David Soares is the Albany County district attorney, an African American and a Democrat. Yet he’s also a fierce critic of the criminal justice “reforms” passed by the Legislature, saying they have made the state less safe and victimized black residents. He was slated to address a state Senate hearing on crime, but was disinvited because legislators did not like the optics of being criticized by someone they couldn’t dismiss as a “white supremacist” or Republican. 

The remarks eventually were read into the record, by someone else, and they were quickly ignored. So here, in Soares’ own words, is what has gone wrong in New York — and what needs to be done. Will Albany continue to dismiss the problem? 

Thank you for having me here to testify about public safety in New York state. 

I’m going to open by saying something you’ve all heard before; the reforms passed in 2017 and 2019, although they were well intentioned and brought about important changes, have been extremely detrimental to public safety. 

What you may not have heard before is a hard truth: that these reforms have had their most devastating impact on black and brown communities. If you take an honest look at the data — the increases in crime, the victims of those crimes and the location of the most violent crimes — the connection is quite clear. 

Set the record straight 

I’ll set the stage by taking a look at our practices before the reforms. For statistical purposes I will highlight a large metropolitan county and a mid-sized upstate county. 

One area that commanded much attention pre-reforms was the percentage of people who were being held on bail post-arrest but pre-conviction. Let’s set the record straight: that was always low, even prior to bail reform. In Albany County, 40% of the beds at the correction facility were occupied by sentenced defendants and defendants awaiting trial on violent felonies. 

One 2019 study of the jail population in Queens County found that 95% of the defendants being held pretrial were being held on felonies, 41% on violent felonies. 

The perception that many people were being held on minor charges on low bail amounts was always absolutely false. In fact, the same Queens study showed that defendants being held solely because of their inability to post bail on misdemeanor charges had an average of more than five felony arrests, seven misdemeanor arrests, seven misdemeanor convictions and almost three failures to appear. 

At some point, repeated violations of the law and disrespect for the process has to be treated with the level of seriousness it deserves. 

When bail reform took effect just over three years ago, thousands of defendants were released from local jails. In fact, some judges actually started a “soft launch,” if you will, by releasing some defendants in November of 2019 in anticipation of the new laws, apparently to avoid the mass release of thousands of incarcerated individuals on one day — and perhaps the bad press that would garner. 

Lockup under lockdown 

Among those individuals suddenly released were hundreds of accused drug dealers, car thieves, shoplifters, burglars, and robbers statewide. 

Members of law enforcement have often been told that the suspension of services during the overlapping coronavirus pandemic was the driving force behind the increases in crime in 2020. While that was undoubtedly a contributing factor, that is not a holistic explanation for the decline of public safety. 

We actually do have a short window of time to analyze that was post-reforms but pre-COVID. That would be the first 2 ¹/₂ months of 2020. Crime had already started rising — by a lot — by the time the coronavirus hit. 

In New York City alone, crime rose 20%, ending a 27-year stretch of yearly crime reductions. Crime was up across the board. Burglaries up 26.5%; robbery up 33.9%; grand larceny up 15.8%; car theft up 68%; petit larceny up 19%. 

What a coincidence that each of these crimes became a non-bail­able offense in 2020, meaning that all those previously held on bail on these charges were released by Jan. 1, 2020. If you deny that the release of hundreds of car thieves, burglars, drug dealers and petty thieves had an obvious impact on crime in New York, you’re denying common sense. 

You don’t need to be a weatherman to know which way the wind is blowing. 

Additionally, the new law created a new form of release: “non-monetary release.” This allows judges to release a defendant without bail but enables them to impose certain conditions, such as requiring the defendant to report to a pretrial agency, seek employment or wear an ankle bracelet. These conditions could only be imposed if the court found that the defendant was a flight risk. 

This release condition was designed to replace bail, while placing some restrictions on the defendant intended to be more impactful than release on recognizance. These were imposed, essentially, on the defendants who would have had bail set under the old law. If they had a prior conviction or pending case, it would be even more likely a judge would have set bail under the old law. 

If we use the Unified Court System’s pretrial data dashboard, and look at the defendants put into the non-monetary release program, we see the following: 

•  Between Jan. 1, 2020 and June 30, 22, 39.6% of the defendants put into NMR got re-arrested while their case was pending. 

• For those defendants put into NMR who had a prior conviction or pending case (79% of the total), the re-arrest rate was 44.6%. 

• For those defendants put into NMR charged with commercial burglary, the re-arrest rate was 62%. For residential burglary, it was 47%. For grand larceny, it was 56%. For robbery third degree, it was 56%. For petit larceny, it was 67%. 

Doomed to repeat 

However, even these numbers undercount the full scope of recidivism. They do not count re-arrests during the time between plea and sentence, which can run for weeks or months. They only count one re-arrest, so if a defendant gets re-arrested four times while out on bail, it only counts in Department of Criminal Justice Services stats as one arrest. The implicit assumption in all of this, that a career criminal is arrested every time they commit a crime, is naïve to say the least. 

In the mind of someone who is determined to break the law, the ability to repeat offenses over a short period of time with minimal repercussions serves only to incentivize such behavior. 

Speaking of incentivizing behavior with the removal of consequences, the impact of Raise the Age has been comparably detrimental to public safety. Since the implementation of Raise the Age, Albany County has seen approximately 312 Raise the Age cases, involving only 230 defendants. I only say “approximately” because these numbers can change on a day-to-day basis. 

Thirty-four percent of those defendants have been arrested more than once; 19% percent of those re-arrested were detained as minors. Of those re-arrested, 62% were re-arrested for a violent felony. 

But what do those numbers mean? Those numbers mean that transferring a case to family court often leads to the defendant being returned to the very community that led them down that path to begin with. Violent cases need to remain in the adolescent part to prevent further community harm. 

Flat-out wrong 

Back to the bail reform law, we should also look at the literal wording of the law, specifically, the words “least restrictive.” These two words from the Bail Elimination Act are specifically referenced by judges when making a determination on bail. That standard often leads to a demonstrably dangerous person being returned to the same environment and community in which they committed their crimes. This helps neither the community nor the offender. 

I’d like to conclude by saying, despite the wild misconceptions, generalizations and assertions of activists about the intentions of prosecutors, our aim isn’t to lock up as many people as possible, for as long as possible. 

The decade-and-a-half period between the Rockefeller Reforms and Pre Bail Reform in 2020 reflect the greatest gains in public safety in the history of New York state. Prosecutors engaging in intelligence-based investigations and prosecutions applied a tough-on-crime and smart-on-diversion approach that ushered in the age of prison closings throughout New York state. 

We understand the complicated nature of social determinants of crime and agree that those should also be prioritized. 

However, pretending that accountability and the immobilization of criminals isn’t a critical part of public safety is akin to pretending the Earth is flat. 

Just because your echo chamber repeats it, doesn’t make it true.