NYC Comptroller’s Office Analysis Finds Bail Continues to Drive Pretrial Detention, Despite Reforms

New York, NY – Despite reforms that have meaningfully reduced the number of people subject to bail, bail-setting continues to drive pretrial detention and syphons money from low-income communities of color, according to a new analysis from the NYC Comptroller’s office. The share of people released pretrial who are rearrested for a new offense has not changed following the implementation of bail reforms.
  
While judges set bail in 14,545 cases in calendar year 2021, down from 24,657 in 2019, defendants and their friends and family still posted $268 million in bail, up from $186 million in 2020. The data on the impacts of the 2019 bail reforms shows that, despite new requirements to consider the ability of defendants to pay in those cases where bail still applies, a full two years into implementation, the 2019 reforms have neither made bail more affordable nor prevented incarceration for those still subject to bail setting. 

Even as the number of people subject to bail has declined, there has been no increase in the number or percentage of people who are rearrested for a new offense while awaiting trial in the community. In January 2019, 95% of people awaiting trial in the community were not rearrested that month, while that proportion rose slightly to 96% in December 2021. Both before and after bail reform, fewer than 1% of people released pretrial, either through bail or otherwise, were rearrested on a violent felony charge each month. 

Rather than roll back critical reforms, the Comptroller’s office urged Albany legislators to strengthen implementation and invest in programs that prevent crime and promote community safety. 

“In a moment of real anxiety about public safety, the conversation on bail reform has become divorced from the data, which shows essentially no change in the share of people rearrested while released pretrial before and after the implementation of the 2019 bail reforms,” said Comptroller Brad Lander. “Instead, what we see is a rise in average bail amounts and a continuation of bail-setting practices that extract money from families and deny freedom to people who are presumed innocent before trial. We should follow the facts rather than fear, and reject reactive efforts to roll back reforms that threaten the progress we have made towards more equal justice. Our system has put a high price on freedom and made bail a barrier to justice for those who cannot afford to pay.” 

The Office of the New York City Comptroller analyzed data provided by the New York State Office of Court Administration on bail setting and bail made, as well as data on pretrial release outcomes from the New York City Criminal Justice Agency during calendar years 2019, 2020 and 2021 to assess the actual impacts of the 2019 bail reforms and the 2020 rollbacks.

Key findings included:

• Since state bail reforms took effect, the number of people subject to bail has significantly declined but bail-setting still drives pretrial incarceration. In calendar year 2021, judges set bail in 14,545 cases, down significantly from 24,657 in 2019. Over 2020 and 2021, roughly half of defendants who had bail set were able to eventually make bail, although most defendants are incarcerated for at least some amount of time before doing so.
• The cost of bail increased. Bail reforms that took effect January 1, 2020 included new requirements for judges to consider a person’s ability to pay when setting bail. Yet average bail amounts rose, rather than fell in 2021, and people continue to be unable to afford the price of their freedom.​ In 2021, the average cash bail amount set at arraignment was $38,866, double the $19,162 average in 2019. While increases in average bail amounts likely stem from broad restrictions on setting bail for lower-level charges, bail law explicitly requires judges to consider the defendant’s financial circumstances.
• Commercial bonds that require high, non-refundable fees to private companies continue to be widely used.​ Of bonds posted in 2020 in New York City Supreme Court – the City’s trial court for felony cases – 57% of cases used commercial bonds. In 2021, defendants and their friends and family posted a total of $226 million in bonds, including commercial bail and partially secured bonds, up from $159 million in 2020 but down 3% from $233 million in 2019.
• Less onerous and punitive bail options, such as partially secured or unsecured bonds, were used less often than commercial bonds. Partially secured bonds accounted for 20% of bail postings in Supreme Court during 2020, and judges used the least onerous mechanism, unsecured bonds that require no money upfront, only seven times in 2020, down from 24 times in 2019. The average dollar amount of partially secured bonds posted in Supreme Court jumped substantially, rising from an average of roughly $11,900 from January through November 2019 to an average of more than $40,000 in 2020.
• There has been essentially no change in the monthly percentage of people rearrested while released pending trial after bail reform. In January 2019, 95 percent of the roughly 57,000 people awaiting trial were not rearrested that month. In January 2020, 96 percent of the roughly 45,000 people with a pending case were not rearrested. In December 2021, 96 percent were not rearrested — and 99 percent of people, regardless of bail or other pretrial conditions, were not rearrested on a violent felony charge.

The Comptroller’s Office recommends that the New York State Office of Court Administration (OCA) provide guidance and clear instructions to judges on how to assess a defendant’s ability to pay and mandate trainings on this provision of the law. OCA should direct judges to first consider an unsecured bond and justify on the record their reasons for not using that option before setting a partially secured bond.  

To significantly curtail the use of pretrial detention, New York should also advance strategies that address root causes of criminal legal system involvement, redirecting resources from the law enforcement and correctional systems to social supports that promote stability and safety and create economic opportunity, such as mental health care, substance use prevention and treatment, affordable housing, youth programming, and quality education. 

The full analysis report can be viewed here.

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