US: Don’t Roll Back New York Pretrial Reforms

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A participant holds a “Build Communities” sign at a rally on Rikers Island in New York, NY. 
© 2020 Photo by Erik McGregor/LightRocket via Getty Images

(New York, NY, March 24, 2022) – New York lawmakers should not, as the governor has proposed, further undermine recent reforms to criminal laws that have improved pretrial justice in the state, Human Rights Watch said today. The reforms, which took effect in 2020, have made pretrial procedures fairer by preventing many people charged with low level crimes from being locked up while their cases are pending because they cannot afford bail.

“New York’s pretrial justice reforms have allowed hundreds of thousands of presumed innocent people to stay out of jail, keep their jobs, and lead more stable lives while they await their court dates,” said Laura Pitter, deputy US program director at Human Rights Watch. “Lawmakers should be considering ways to preserve and strengthen the reforms, which data show have not harmed public safety, not roll them back.”

Governor Kathy Hochul proposed changes to the reforms as nonfiscal elements of the state budget, which must pass by April 1, 2022. The changes include making many more criminal charges, including misdemeanors, bail eligible, even though in New York City only 12 percent of misdemeanor charges result in a criminal trial and only 9 percent in jail time.

They also would give judges significantly more discretion to detain people while their cases are pending; and allow police to arrest people instead of giving them Desk Appearance Tickets (DATs) in many more cases, including when the person received a DAT in the previous 18 months, even for something minor.

Human Rights Watch supported the original reforms, passed by the state legislature in 2019, which went into effect in January 2020. They required judges to release people charged with most misdemeanors and nonviolent felonies while their cases were pending but permitted judges to detain those arrested for violent crimes. The reforms were important because people held in pretrial custody face hardships not faced by people accused of the same crimes who can afford bail.

As Human Rights Watch has documented, those held in jail or who can’t pay bail can lose their jobs and homes and can no longer go to school. Their children can be taken from them. This makes people who cannot pay far more willing to plead guilty regardless of actual guilt just to obtain their freedom. The reforms contributed to a 40 percent reduction in New York City’s bloated pretrial jail population as of March 2020.

State legislators then amended the reforms, effective July 2, 2020, allowing more cases to be eligible for bail and pretrial detention. This led to a 7 to 11 percent increase in the pretrial jail population by the end of the year, with New York City judges overall setting bail more often.

Even with the amendments, Mayor Eric Adams and many officials in law enforcement continue to be highly critical of the reforms, often wrongly blaming them for an increase in gun violence and other crime. Though some crime, particularly the number of homicides, rose in 2020, it also rose in many other cities that did not enact similar reforms. The rise also correlates to the social and economic upheaval related to the Covid-19 pandemic and a dramatic increase in gun purchases nationally, which could have contributed to it. According to the New York Police Department’s own data, bail reform is not responsible for the spike in gun violence. Looking at longer term trends, though some crime has gone up in recent years, crime is dramatically down overall compared with its peak in the 1990s.

The state’s pretrial data shows that the vast majority of those released since the reforms went into effect, 95 percent, were not rearrested on any additional charges. Of those who were rearrested, most were charged with misdemeanors or nonviolent offenses, and fewer than 1 percent for violent felonies. The same data shows little change in rearrest trends since 2019.

Further rollbacks to these reforms are not necessary. Pretrial reform has made New York’s system fairer by limiting punishment prior to a conviction, by allowing people to contest charges against them without the pressure of being in jail, and by removing wealth as a factor in determining outcomes. It has allowed people to keep their jobs and homes, to maintain family connections, and to access health care while contesting accusations against them.

Rollbacks are likely to compound existing racial disparities in policing, arrests, and incarceration. For example, making people who have been arrested or given a DAT in the past 18 months bail eligible if they are charged with anything, even with another DAT-eligible offense, which is generally minor, during that period, is likely to disproportionately affect Black and brown communities that experience heavy policing.

In New York City, 91 percent of people jails are nonwhite. Increasing the ability of judges and police to detain even more people pretrial will also, as it did before, increase pretrial detention. The city’s jail population is already nearly back to prepandemic levels.

Rikers Island, where New York City sends people to wait for their day in court, is in a crisis state. In 2021, 16 people died there, and, three people have died already during 2022, two in just the last week. A federal monitor overseeing the jail recently said the complex is “trapped in a state of persistent dysfunctionality,” calling it “unstable and unsafe.”

Other provisions of Hochul’s plan are also problematic. Hochul proposes to substantially undermine the discovery reform law that had finally put New York in line with every other state in the US. Hochul’s plan would allow prosecutors to withhold evidence from people accused of crimes, limiting disclosure just to what prosecutors intend to present at trial, and allowing them to avoid penalties for nondisclosure if they can convince a judge that they “substantially” complied with the rules. These changes would open the door to abuse that could deny due process and fair assessments of the charges.

She also proposes narrowing the recently passed “raise the age” laws to allow some children to be charged as in adult rather than in youth or family court, in direct contravention of the science that originally informed the laws, recognizing the difference in adolescent brain development and the damaging effects of jail and criminalization on children. There is also research showing that youth are less likely to commit new crimes if prosecuted in the juvenile, instead of the adult, system.

Hochul’s plan also expands the possibility that someone will be committed involuntarily including when they refuse care, food, or shelter being offered by the city, regardless of the reason for the refusal, in violation of international human rights standards on the right to legal capacity of people with disabilities. The plan to increase funding for mental health treatment should be supported but it deserves much more than the $21 million increase proposed.

“New York took a step forward when it enacted transformative criminal reforms in recent years,” Pitter said. “Instead of reversing that trend and sending more people to jail, it should be investing in affordable housing, access to health care, education, and other support that communities need to thrive and stay safe.”  

 

 

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