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In January 2020, New York began implementing legislation aimed at reforming bail practices for those awaiting trial. The reform was aimed at reducing jail populations and allowing individuals who cannot afford bail to await their trial date outside of jail. The initial iteration of the reform applied to almost all misdemeanor and nonviolent felony defendants (“exempt crimes”). Further, the reform required judges to consider each defendant’s “individual financial circumstances,” “ability to post bail without posing undue hardship,” and “ability to obtain a secured, unsecured, or partially secured bond.” Under this new requirement, courts essentially could not impose cash bails for many defendants. In the City of New York alone, nearly 84% of all defendants arraigned in 2019 would not have been subject to cash bail under the reform. 

The reform was immediately met with staunch opposition by both citizens of New York and Republican state officials . The backlash and criticism against the initial reform led to a fundamental overhaul and in early April 2020, the New York state legislature amended the reform. The amended reform added more crimes to the list of non-exempt crimes, thus allowing cash bails to be set for a larger range of crimes. The new list includes, among others, “sex trafficking” offenses and “any crime resulting in death.” The amendment also gave courts discretion to implement cash bail for defendants “on probation, under post-release supervision, or eligible to be sentenced as a ‘persistent offender,’” even if the underlying crime would not be eligible for cash bail.  

Despite the changes, critics still argued that the reform left too little discretion for courts to determine how releasing individual defendants might affect their individual communities. Though other states have implemented other types of bail reform, “New York is one of the few states to abolish bail for many crimes without also giving state judges the discretion” to make individual determinations for cash bail. New York City Police Commissioner, Dermot F. Shea, claimed, “When you have individuals that are standing before a judge and immediately being released, and essentially everyone in the room knows that this person is a danger to the community, I think we need to look at the system and make sure that judges can make common-sense decisions.”   

Critics pointed to a correlation between the bail reform and a subsequent increase in crime. The NYPD reported a 22.5% increase in major crimes in the five boroughs in February 2020 compared to the same month the year before, and critics have argued that the increase can be attributed to bail reform (although skeptics have disputed the rise in crime and have blamed critics of bail reform for “fear-mongering”). Regardless, even former New York City mayor Bill de Blasio claimed, “there’s a direct correlation to the change in the law,” in reference to the uptick of crime. 

Nevertheless, bail reform advocates claim that this is an important first step to leveling the playing field between rich and poor defendants. For example, detention may harm defendants’ livelihoods and trial chances. As some reform supporters note, “those who are held pretrial are four times more likely to be sentenced to prison than defendants released prior to trial” and “pretrial detainees are also likely to make hurried decisions to plead guilty to a lower charge to spend less time behind bars rather than chancing a higher charge and longer sentence.” 

Moreover, supporters note that being jailed for bail may “leave people more desperate and unstable than they would have otherwise been, and may actually lead to more, not less crime.” In fact, the negative effects of pre-trial detainment can begin within “two to three days” of incarceration. Therefore, any perceived benefit of cash bail may be harmed by the long-term consequences it has on defendants, particularly, the impact of pre-trial detention on recidivism. 

Cash bail may also contribute to unfair outcomes among different societal groups. Cash bail practices frequently affect Black and Latino men disproportionately. In a Maryland study, the mean bail amount for black men was roughly 50% higher than their white counterparts. Although criminal backgrounds differed, the core implication remains the same: bail practices disproportionately impact black defendants given the harm that longer jail terms have on defendants’ recidivism and trial chances. The disproportionate effect is also seen between various socioeconomic statuses; those without the means to afford bail face incarceration while their wealthier counterparts may await trial while in their communities. For example, if two individuals get together and plan a robbery but are caught before anything happens, the wealthier defendant will be able to get out on bail while the poorer defendant will be incarcerated for months or even years awaiting trial. If the goal of cash bail is to protect society from these dangerous individuals until trial, the current system allows wealthier defendants to buy their own get out of jail cards. 

Although cash bail is used as a method to ensure defendants appear for trial, it functionally keeps defendants detained until trial, essentially criminalizing poverty. In fact, critics of bail reform agree that allowing alternative methods like the Supervised Release to ensure that defendants show up for trial is nearly as effective as cash bail. Despite this, critics still emphasize the potential harm that bail may inflict on communities, specifically that individuals released without bail may reoffend. 

However, considering the relationship between cash bail and wealth, this view has flaws. Unless the core of the criticism is that those who are of a lower socioeconomic status are inherently more likely to commit crimes, the idea that being able to afford bail is directly correlated with propensity to commit crimes is problematic. If this is the core of the criticism, then the solution lies not with bail reform, but an increased focus on social services. The criticism must then be based on the relationship between bail reform and its effect on those with a preexisting propensity to commit crimes (i.e., defendants released without bail are more likely to reoffend). 

If this is the core of the criticism, then the solution lies with increasing a court’s discretion. New York’s amended bail reform tried to address this issue by granting courts discretion, but it hindered that discretion by limiting discretion to felonies where a defendant could qualify as a persistent felony reoffender. 

The most balanced approach to an “unfair” criminal justice system lies somewhere in the middle of allowing cash bail without limitation and an entire ban on cash bail. To find the balance between ensuring a safer society and curbing the justice system’s disproportionate impact on the poorest members of society, courts must be given increased discretion when deciding bail. However, to avoid courts slipping into the practices of the status quo and requiring cash bail for almost all offenses, there would be a presumption of release that prosecutors would have to overcome. This system would assume that all nonviolent misdemeanors and felonies (excluding crimes against children) would require alternative bail methods. These bail methods would include, among others, Supervised Release, secured bail bonds, or partially secured bail bonds (with courts considering a defendant’s ability to post secured bonds). This would give the courts the ability to ensure defendants return for trial without imposing an unfair burden on poorer defendants. 

Prosecutors could then introduce evidence that speaks to the dangers of the defendant reoffending or the particular nature of the crime and ask the court to institute a cash bail. The court could then, in its discretion, choose to institute a cash bail. The court may also allow the defendant to introduce evidence to support alternative bail methods. 

For example, if a defendant is accused of stealing a backpack (and no one is harmed in the process), the court would start with a presumption of release using alternative bail methods. The prosecutor would then be given an opportunity to introduce evidence that would support the use of cash bail. This evidence may show a pattern of theft by the defendant. The defendant would then be able to offer evidence of its own to support the use of alternative bail methods. The defendant could claim that this was a crime of necessity and that the previous offenses happened years ago. The court would then weigh the arguments presented and use its own discretion to determine which method of bail to use.

This solution would presumably find the balance between using cash bail as a method to ensure a safer community without disproportionately harming poor defendants. Moreover, to avoid the issue of overcrowding in jails caused by those awaiting trial and the impact overcrowding has on other inmates and guards, states could use the funds saved by lowering the number of defendants detained during the pre-trial period to help combat these issues. This would find middle ground between critics and supporters of bail reform, while recognizing the role cash bail plays in the criminal justice system.