A New York law eliminating cash bail and pretrial detention for most nonviolent crimes went into place at the beginning of the new year. The Bail Elimination Act was passed by the state legislature in April 2019 and signed into law by Gov. Andrew Cuomo. The legislation was primarily designed to address the disproportionate effect on people who cannot afford to pay bail and must remain in jail until their trial date. Though similar laws limiting money bail exist in other states, like California and New Jersey, New York remains the only state in the country that does not allow judges to consider public safety when setting bail or imposing pretrial detention.
The elimination of bail for nonviolent crimes is especially concerning for retailers and loss prevention professionals, whose work with law enforcement almost exclusively involves misdemeanors, such as shoplifting, or other nonviolent crimes. Even organized retail crime, which has become an increasing risk for retailers, is often nonviolent, giving professional thieves the opportunity to remain free and commit more crimes. By almost “decriminalizing” petty crimes such as theft, the law essentially absolves people of being responsible for their actions. No matter how much someone steals or how many times they are caught, it will be a no-bail situation. This will add another layer to the already-complex issue of ORC.
Leading Up to the Bail Elimination Act
Though the Bail Elimination Act is similar to California’s Senate Bill 10 passed in August 2018 and New Jersey’s Bail Reform and Speedy Trial Act enacted in January 2017, the proposal did not receive nearly as much news coverage because it was not meant to eliminate cash bail entirely.
According to a report released by the Vera Institute of Justice, the law’s origins came from the steady or increasing jail populations despite historic declines of arrests statewide. Of the average daily jail population across the state, 67 percent of individuals have not been convicted of a crime. Proponents of the law argued that bail disproportionately harms people of color and low-income populations, who undergo the loss of jobs, housing, benefits, and even child custody while under pretrial incarceration. New York’s pretrial laws have been largely unchanged since 1971.
In 2018, Cuomo proposed a set of reforms that would mandate release for misdemeanors and most violent crimes while preserving bail requirements for serious cases such as domestic violence and violent felonies. His proposal also included giving judges the ability to consider a person’s ability to pay when setting bail and, for the first time in New York’s history, allow judges to impose preventative detention or the ability to sentence defendants to remand without bail as a public safety measure for serious cases.
However, when the state legislature of New York eventually passed what would become the Bail Elimination Act, they removed this public safety measure from the bill. This decision makes the new bail reform vastly different from similar legislation in California, New Jersey, Illinois and other states who have limited the use of bail but still allowed judges to order remand without bail if they believe a person poses a threat to public safety. Instead, New York allowed judges to order money bail for most violent felonies, all sex-related charges, and some domestic violence offenses, which are serious cases that trigger concerns about public safety.
The Law in Action
Though the new law is meant to limit the use of bail for misdemeanors and nonviolent crimes, some felonies are exempt from bail, including:
- Sex offenses
- Terrorism-related offenses
- Burglary in the second degree
- Robbery in the second degree (where no violence is alleged)
- Manslaughter
- Criminally negligent homicide
- Drug sales on school grounds
Like first-degree burglary, second-degree burglary requires that the defendant was armed and caused injury to the victim or used or threatened to use their weapon. The only difference separating the two is that first-degree burglary occurs when the residence is occupied. Similarly, second-degree robbery requires that the defendant had an accomplice, caused injury to a victim, or used a weapon while committing the robbery, while first-degree robbery requires that a victim was seriously injured. That means that defendants who had an accomplice or used weapons while committing a crime can be released without bail.
Since the Bail Elimination Act went into place on January 1, anyone who had been in jail for a misdemeanor or nonviolent felony has been released from jail on their own recognizance, meaning the court expects that they will return for their trial, or they must meet nonmonetary trial conditions, such as electronic monitoring. Defendants can still be detained if they pose a flight risk, but their perceived future risk to public safety cannot be considered in the judge’s release decision.
The law also requires that judges set at least three forms of bail, which must include a partially secured bond, where defendants can pay 10 percent or less of the total bail amount upfront so long as they show up to court, and an unsecured bond, where no upfront payment is required. Research by the Vera Institute of Justice has shown that that people who pay bail with partially secured or unsecured bonds are just as likely to attend their court dates as people who pay the full bail amount upfront. Judges are also required to consider each defendant’s “individual financial circumstances” and “ability to obtain secured, unsecured or partially secured bond,” with the intention that bail is set in forms and amounts that are affordable.
The Bail Elimination Act allows the court to set money bail in cases involving specific forms of pretrial noncompliance:
- Persistent and willful failure to appear in court
- Violation of an order of protection
- A charge of felony witness intimidation or tampering during the pretrial period for an original misdemeanor or violation charge
- A new felony charge while an initial felony case is pending
A defendant can also be electronically monitored if they are found to have committed any of these forms of pretrial compliance.
Cases of suspects set free include a serial bank robber, a repeat burglar, a man accused of manslaughter and an alleged hit-and-run drunk driver. However, the most notorious case that demonstrates the negative effects of the bail elimination law is the case of a woman accused of an anti-Semitic assault against three woman who was arrested and accused of another assault the day after her release. The original assault accusation occurred during a period of anti-Semitic assaults in New York that created pressure on elected officials to do more to fight hate crimes.
So What’s the Point of Bail?
Proponents of the new law cite studies demonstrating the negative impacts of pretrial incarceration, saying they may “lose their jobs, fail to make rent or have their children taken away” and that maintaining stability and community ties are “crucial to keep people from falling back into the cycle of arrest and incarceration.”
However, many critics are concerned that eliminating bail, though well intentioned, might have more negative effects than anticipated. For example, the law was designed to address low-level, nonviolent crimes. Recidivists who are repeatedly charged with misdemeanors cannot be detained until their trial, which means they are free to commit more crimes.
And one of the biggest questions about eliminating bail: Isn’t bail designed to hold defendants accountable to going to court for their trial?
In early January, a serial robber arrested for committing a string of robberies stretching back to Dec. 30 was released without bail and later robbed multiple banks in New York City. He was again arrested and released without bail because he was charged with robbery in the third degree and grand larceny, which do not meet the new state requirements for bail.
In response to the robber’s release, NYPD Commissioner Dermot Shea tweeted, “What motivation does this suspect have to return to court? None. This makes NYPD cops’ jobs harder, and makes New Yorkers less safe.”
The Potential Impact on Retailers
The elimination of bail for nonviolent crimes is especially concerning for retailers and loss prevention professionals, whose work with law enforcement almost exclusively involves misdemeanors, such as shoplifting, or other nonviolent. Even organized retail crime, which has become an increasing risk for retailers, is often nonviolent, giving professional thieves the opportunity to remain free and commit more crimes. By almost “decriminalizing” petty crimes such as theft, the law essentially absolves people of being responsible for their actions. No matter how much someone steals or how many times they are caught, it will be a no-bail situation. This will add another layer to the already-complex issue of ORC.
Organizations like the National Association for Shoplifting Prevention (NASP), which focuses on educating shoplifter offenders to reduce recidivism rates, or other programs that require alternative forms of payment from offenders will also likely be shut down in New York to meet the new requirements of the law.
I am a firm believer in criminal justice reform, but to me this law is not about criminal justice reform. I see this as a political move that is likely to pose a risk to public safety and add to the increased risk of ORC in New York. Though the news has sensationalized the issue and focused on some high-profile cases of alleged offenders released without bail, they are failing to talk about the bigger problem—eliminating bail is not actually helping people. Those of us in the retail and asset protection industries should definitely be concerned and prepare for any new risks by updating our risk analysis and LP strategies in response to this new law.