Evaluating bail laws should be evidence-based

“Evidence-Based Legislation” is a modern concept in democratic legislatures requiring that laws must be based on evidence, science, and fact.

On Nov. 11, 2022, for example, a bipartisan resolution was introduced in the U. S. House of Representatives to establish a commission on evidence-based policymaking which would recommend methods to bring evidence-based policymaking into the legislative process.

To be sure, laws should be based on facts, not on surmise, fear, or superstition. Interestingly, fear of crime was a major theme in our recent Long Island elections, with the Republicans using it to their political advantage.

One of their scapegoats was the change to New York’s bail laws. While campaigning on a promise to erase those changes, they failed to ofer any alternatives.

It will be helpful to review the legislative changes to our bail laws over the course of the last four years.

In 2019, too many defendants remained in pre-trial detention because they couldn’t pay small amounts of bail.

As a result, the bail laws were changed so judges would not set bail on a lengthy list of misdemeanors and non-violent felonies. For the crimes that remained bail-eligible, judges were to consider the ability to pay bail and were to set the least restrictive conditions.

The law was met with anger from prosecutors, judges, police, and Republican politicians. With neither evidence nor proof, the change to the law was labeled as the cause for the commission of crimes, which rose during the pandemic in 2020.In April of 2020, additional crimes were made bail eligible, including sex trafcking, grand larceny, second-degree burglary, vehicular assault and any crime resulting in death.

Explicit language was added mandating that judges consider criminal history in setting bail. Bail could be set on ‘persistent ofenders’ when new felonies were committed by those on probation or parole even when ofens- es were not violent. More judicial discretion was enacted in 2022. Judges were empowered to consider specifc factors such as whether the crime involved “serious harm” to another and whether the defendant had a history of possession and or use of a weapon. Judges were given the explicit authority to set bail on repeat ofenders when the charge involved harm to people or property.

Bail was authorized for repeat ofenders. Gun crimes were made bail eligible. In spite of the efort to politicize bail, what was supposed to be a “red wave” in November turned out to be more of a “red herring” for New York Republicans, with Gov. Hochul winning election to a full term and both the Senate and Assembly remaining frmly in Democratic hands.

No evidence linked bail reform to the 2020-21 increase in crime. Driven by the pandemic,violent crime rose nationally in 2020 and 2021 in Republican- and Democratic-controlled states and cities.

It rose in states that had not enacted reforms to their bail systems, with easy access to guns serving as an aggravating factor in the overwhelming majority of murders. Statistics released by New York’s Division of Criminal Justice Services in September of 2022show that in 2019, before bail reform, 19% of those released on cash bail were rearrested. In 2021, after bail reform, that number was 20%.

In 2019, 18% of those released without bail (released on their own recognizance), were rearrested. In 2021, however, only 16% of those released on their own recognizance were rearrested.

Both the Assembly and Senate will conduct a joint legislative public hearing to examine the data on crime statistics and ways to improve data collection on Monday, Jan. 30. The hearing will also examine how the Legislature can best use the data to expand or implement responsive solutions to emerging trends in crime.

While joint legislative fact-fnding hearings are not the norm, the legislature fully recognizes the signifcance of the need to provide for public safety. It recognizes as well that the only way to promote public safety is through “Evidence-Based Legislation.”

The hearing will be streamed through the Assembly and Senate websites and will be archived for public viewing Charles Lavine is the state Assemblyman for the 13th District