How has pretrial release decision-making changed in 2020 in the midst of sweeping changes to the state’s bail statute and a global pandemic that has dramatically impacted court operations? Does 2020 represent a sharp break from the past, or a continuation of longer trends? Has the bail reform statute, meant to (with some exceptions) eliminate the use of monetary bail for individuals charged with misdemeanor and nonviolent crimes, achieved its goals? What kinds of decisions are judges making where they largely retain their discretion to set conditions of pretrial release?
The second edition of Pretrial Release Without Money: 1987-2020 aims to answer these and other questions. The first edition, which covered the period from 1987 to 2018, compiled over 5 million pretrial release decisions to show broad trends in pretrial release decisions in New York City over the last three decades. This new edition extends those findings to 2020.
As this brief’s first edition showed, New York City had embarked on a decades-long movement away from the use of monetary bail and towards nonmonetary conditions of release—meaning that it had already made substantial progress to meeting the ambitious reform goals outlined in state bail reform legislation.
Two additional years of data show a further acceleration of longer-term trends. Perhaps most significantly, the volume of money bail has plummeted since 2018. Comparing 2020 to 2018, money bail was set at arraignment only 11,493 times in 2020, compared to 30,288 in 2018 (and over 80,000 times in 1989). At the same time, the percentage of cases with nonmonetary release conditions set at arraignment increased from 77 percent in 2018 to 84 percent in 2020 (it was 52 percent in 1990).
This research brief will show that changes in pretrial release practice occurred in every borough in New York City, in particular for individuals charged with a misdemeanor or nonviolent offense. However, the pace of change is much more modest with respect to individuals charged with a violent felony offense, where judges retain considerable discretion to set terms of pretrial release. A final important change is the rapid expansion of Supervised Release, which despite a four-month pause in new admissions due to the Covid-19 pandemic, was set as a pretrial release condition nearly as often as monetary bail in 2020.
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The rate of money bail declined by 32 percentage points
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The volume of money bail dropped by more than 70,000
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The rate of money bail fell for all crime severity categories
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The volume of money bail dropped in all crime severity categories, most sharply for nonviolent felonies
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The rate of release without money rose by 27 percentage points
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The rate of release without money rose in all crime severity categories
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The rate of Supervised Release rose to 11 percent
In 2020, the New York City courts have grappled with sweeping changes to the state’s bail statute, a global pandemic and mid-year revisions to the bail statute—all in a single year. At the same time, the city experienced worrying increases in homicides and gun crime, which has led to a heated debate over how much this has been fueled by individuals on pretrial release.
However, cities across the country with very different pretrial release practices have seen similar increases. And notably, with decreases in grand larcenies, rapes, robberies, and felony assaults, New York City ended 2020 with fewer overall “index” crimes than in 2019.
“even before 2020, New York City had already moved towards an embrace of nonmonetary forms of pretrial release.”
This research brief has sought to examine pretrial release outcomes for more than a three-decade long period. Doing so serves as a corrective to the desire to come to immediate conclusions about the impacts of bail reform. By making nonmonetary forms of pretrial release the overwhelmingly likely outcome for individuals charged with misdemeanors and nonviolent felonies, bail reform has accomplished one of its main goals. Yet even before 2020, New York City had already moved towards an embrace of nonmonetary forms of pretrial release.
Supervised Release provides another good example of the value of long-term thinking. The program, which links individuals on pretrial release to trained social workers, began as a pilot in a single borough in 2009 and was expanded on a limited basis citywide in 2016, and again in December 2019 to serve all charges. When combined with the removal of monetary bail as a pretrial release option for most individuals charged with a misdemeanor and nonviolent felony, this fueled a rapid increase in judicial mandates to the program. In 2020, Supervised Release accounted for 11 percent of all pretrial releases, despite a four month pause in new admissions due to the global pandemic.
Whether New York City is able to sustain its commitment to nonmonetary forms of pretrial release will in large part depend on the ability of practitioners to build confidence in the Supervised Release program, particularly for individuals charged with a violent felony offense where judges retain the discretion to set monetary bail as a pretrial release condition.
For New York City, the challenge remains the same: maintaining a longstanding commitment to nonmonetary forms of pretrial release while carefully tracking impacts on critical outcomes.