NYC pretrial jail population has risen by 16% since bail law change, with variety of likely factors
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The city’s pretrial jail population has increased by 16 percent since July 2, the day the state rolled back parts of a landmark bail reform law. AP Photo/Seth Wenig
By David Brand
New York City’s pretrial jail population has increased by nearly 16 percent in the 100 days since the state rolled back a landmark bail reform measure on July 2, a spike that attorneys and policy experts attribute to a variety of factors, including the recent rise in violent felony arrests, the impact of the amended bail measure and prosecutors’ and judges’ response to the spread of COVID-19 behind bars.
There were 2,909 people in pretrial detention on July 2, the day the bail reform rollback took effect and certain offenses once again became bail eligible. On Saturday, the pretrial jail population was 3,364, according to daily Department of Correction reports.
The amended bail measure implemented July 2 reinstated bail eligibility for some offenses that were not considered bail eligible under the landmark reform law that took effect Jan. 1, when 3,664 people were held in pretrial detention in city jails. State lawmakers agreed to change the law after facing intense pressure from police groups, district attorneys and judges.
The Center for Court Innovation estimated in a May report that the jail population would increase by 16 percent under the amended measure — nearly the exact amount it has risen. The report predicted that three newly bail eligible offenses — second-degree burglary of a dwelling, first-degree criminal possession of a controlled substance and first-degree criminal sale of a controlled substance — would account for nearly half of that increase.
But report author Michael Rempel, the director of jail reform at the Center for Court Innovation, said the current 16 percent increase is the result of several factors, including an increased number of arrests throughout the summer and the gradual rise in the jail population following historic lows during the peak of the COVID crisis.
His spot-on estimate was coincidental, he said. The amended bail law has more likely resulted in a pretrial population increase of between 6 to 9 percent, Rempel said, citing his more recent analysis of the charges against people currently in pretrial detention.
It remains too early to tell what the specific impact of the bail law will be on the jail population in the short-term because the effort to move detainees out of jails to prevent the spread of COVID-19 has added an unexpected and unprecedented variable, he added. Nevertheless, he said he expects the amended bail law to continue driving up the pretrial detention population.
“The population continues to increase as arrests increase, and judges have more opportunities to set bail on cases that have been made eligible for bail under the rollback,” Rempel said.
So far, the pretrial detention statistics indicate that the bail reform rollback has had an impact in one particular area: The number of people held on second-degree burglary as their top charge has increased by nearly 50 percent since July 2.
The number of people jailed pretrial with a top charge of second-degree burglary increased from 152 on July 2 to 226 on Oct. 11.
Over the same time period, the number of people held pretrial on a top charge of first-degree burglary barely budged. It was 87 on July 2 and 88 on Oct. 11.
Under the bail reform law that took effect at the start of 2020, judges could not set bail on a person charged with second-degree burglary. The amended measure allowed judges to once again set bail on people charged with that offense, which involves breaking into a home.
Even under the initial bail reform law, people charged with second-degree burglary were still jailed pretrial under some circumstances.
Defendants may have been arrested for second-degree burglary while they were out on bail for a separate felony offense, or their arrest may have prompted a state parole hold that prevented their release, said Legal Aid’s Decarceration Project Supervising Attorney Marie Ndiaye.
“There’s been a trope that everyone has been out walking free, but that isn’t true,” Ndiaye said.
Legal Aid and other public defender organizations have raised the alarm about the rising number of defendants held pretrial since the amended bail law took effect. The increase will only continue at the same time as COVID-19 rises, they warn.
“It is plainly unconscionable that Albany capitulated to racist fear-mongering and subjected more people to pretrial detention during the COVID-19 pandemic — a betrayal that is downright cruel and dangerous,” Legal Aid said in a joint statement with other borough-based public defender organizations. “One hundred days after the implementation of these bail rollbacks, our fears have been realized as more and more people are in jail as the city braces for a resurgence of COVID-19.”
While the July 2 measure has likely nudged the pretrial population up, the COVID crisis has made a comprehensive analysis of the impact of the rollback more complicated, according to a spokesperson from the Mayor’s Office of Criminal Justice.
The number of people behind bars dropped to 70-year lows in March as the city sought to reduce the jail population while COVID-19 surged behind bars. The inmate population has gradually risen as COVID cases dropped and judges were more likely to remand defendants. At the same time, violent crime increased citywide, resulting in more violent felony offenses.
MOCJ broke down the jail population statistics from June 29 through Oct. 4 and found that the violent felony offenses, particularly gun-related charges, account for the largest proportion of the population increase since June 29, a surge that correlates with a spike in violent crimes over the past few months.
There were also more people charged with violent felony offenses detained in city jails on Oct. 4 (2,959) than there were on March 16 (2,803), around the time that the spread of COVID-19 in city jails became apparent.
The number of defendants charged with non violent felonies and misdemeanors have increased relative to June 29, but both populations are still significantly lower than they were on March 16, according to the data compiled by MOCJ.
"The data shows the summer spike in gun-related crime is the primary driver of an increase in the jail population since the end of June,” said MOCJ spokesperson Colby Hamilton. “While the most recent State changes to bail laws undoubtedly gave judges more eligible charges, it has been violent felonies — shootings, murders, and assault — so often connected to guns that are resulting in more arrests and more detention.”
The effort to examine the impact of the bail reform law comes more than ten months after the measure dominated pre-COVID news cycles.
The state enacted a landmark measure that eliminated bail on nearly every misdemeanor and nonviolent felony, as well as a handful of felonies considered violent, on Jan. 1.
Deep racial and income disparities informed the movement to overhaul the bail law. While low-income defendants — particularly Black and Latino New Yorkers — languished in pretrial detention, wealthier defendants could afford to pay for their release.
The change, however, spurred intense backlash from law enforcement groups, district attorneys, media outlets, conservative leaders and moderate Democrats who warned of a rise in crime.
The pressure compelled state lawmakers to adjust the new bail law as part of the opaque April budget negotiations. The legislation that took effect on Jan. 1 had passed as part of last year’s budget.
Throughout the first 100 days following the partial rollback, pretrial detainees made up the vast majority of people held on Rikers Island and other city jails — 3,364 out of 4,455 total detainees held in city jails Saturday had not yet been convicted of the crimes they are currently charged with, according to Department of Correction statistics.
NYPD officials, law enforcement groups and conservative elected officials say there are still too few people behind bars as a result of the bail reform measure. Limited consequences have led to a rise in crime over the previous four months, they say.
“It’s not about who got out of jail. It’s about who’s not going into jail,” Police Commissioner Dermot Shea told Hamodia last month. “The law was designed to suppress the population of jails and prisons, and it’s extremely effective.”
“So, my credit goes off to who crafted it, because they were very effective, but, unfortunately, now we’re dealing with the repercussions.”
