Bail Reform Faces Backlash

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It’s Friday, May 5, and we’d like to welcome you to the weekly State and Local Roundup. There’s plenty to keep tabs on, with children's knowledge of American civics slipping, judges scrutinizing police use of Google search terms and Vermont opening its doors to out-of-staters to use its aid-in-dying law. But first we’ll start with the backlash to bail reform.

It culminated this week in New York state. More than a month after the state’s budget deadline, state lawmakers finally enacted a budget late Tuesday. A contentious fight over bail reform measures the state passed in 2019 helped stall negotiations.

At issue was a requirement in that law that judges impose the “least restrictive” pretrial conditions. The bail reform measure, which went into effect in January 2020, eliminated cash bail and mandated release for most people charged with misdemeanors and nonviolent felonies. In some cases, though, judges could order pretrial supervision or electronic monitoring instead. Judges could only impose cash bail and pretrial detention in serious cases, including some domestic violence offenses and violent felonies. And when judges do set bail, they must consider a person’s ability to pay. 

Bail became a key issue in last year’s gubernatorial race, when Gov. Kathy Hochul was up for reelection. Hochul’s opponent, Republican Lee Zeldin, blamed the governor and the bail reform law for allowing repeat offenders to remain on the street. Following her narrow victory last November, Hochul made bail reform a key part of her agenda.

The budget deal eliminates the clause that forced judges to consider the “least restrictive” bail option. Now, they can choose options they believe are “necessary to reasonably assure” a defendant's return to court.

"I believe that judges should have the authority to set bail and detain dangerous defendants," Hochul said during a Wednesday press conference.

What happened in New York is emblematic of a larger backlash to bail reform and reflects a larger conversation happening nationwide around public safety. Amid media coverage and political rhetoric about rising crime rates, elected officials are scrambling to look tough on crime. But the solutions are not always grounded in data. And criminal justice advocates are quick to point out that in the case of bail reform, the assault on it is political, not substantive.

Hochul cited media coverage of violence as one of the primary reasons she pushed for revisions to the law.

“There's some horrific cases splashed on the front pages of newspapers where they talk about individuals where a judge and the defense lawyer said following ‘least restrictive means,’ you have to let this person out,” Hochul said last month. “And some of those cases literally shocked the conscience. You cannot believe they let the person out. And they said, ‘My hands are tied, I have to follow the least restrictive means.’ So it was important to remove that to give the judges the clarity.”

But Insha Rahman, vice president of advocacy and partnerships at the nonpartisan think tank Vera Institute of Justice, says there is no data showing that bail reform has negatively impacted public safety. In fact, she said, it shows the opposite. In the city, for example, pretrial rearrest rates remained nearly identical pre- and post-bail reform. Meanwhile, the number of people subject to bail significantly declined between 2019 and 2021. In other words, fewer people were held on bail but pretrial rearrest rates remained the same. 

“It doesn’t matter what the numbers say,” Rahman said, “if the leadership is saying something different.”

Polls showed New Yorkers support the rollbacks, which Rahman says is a drastic change from four years ago when bail reform passed. A majority of New Yorkers supported it then, she says.

The bail reform movement in the U.S. sprung largely out of the fact that America’s jails are filled with people who have not been convicted of a crime. According to the Prison Policy Initiative, the nation’s jails hold more than 400,000 people awaiting trial, a number that has nearly quadrupled since the 1980s. The prisoners are disproportionately people of color and people who are poor. Many of them sit behind bars, sometimes for years, simply because they cannot afford to pay their bail.

Studies have shown that even spending a few days in jail can have tremendous consequences on a person’s life. They can lose their job, custody of their children and their housing. Imprisonment can also pressure them to plead guilty.

To reverse these trends, New Jersey and California were the first to embark on bail reform. California’s effort was eventually overturned by referendum in 2020, but New Jersey’s bail reform measures have remained in place since they went into effect in 2017. 

New Jersey’s approach has been roundly praised. The state eliminated cash bail and instituted a risk assessment approach, in which judges consider community safety and other factors before deciding whether to detain or release someone before trial. According to state data, the pretrial jail population decreased by 20% between 2015 and 2022. Over roughly the same period, the state saw a decrease in overall crime and a decrease in violent crime steeper than the national average.

But even New Jersey hasn’t been immune to the political rhetoric around public safety. In December, Politico reported that “some of the state’s most powerful Democrats want to roll back [the state’s overhaul to its bail system] amid rising crime and political lessons from neighboring New York, where another bail overhaul became a major issue in the midterms and fueled key House losses for the party.”

And this week, Florida Gov. Ron DeSantis used the events in New York to explain a law that preemptively bars local governments in the state from eliminating cash bail. DeSantis said tightening cash bail laws prevents “a culture of recidivism, repeat offenders and a situation where crime is spiraling out of control.”

“This is kind of the ‘anti-New York,’ in terms of what we’re doing,” DeSantis said. “They wanted to basically say that a lot of these crimes should be treated with a slap on the wrist. We’re doing the opposite.”

There is one state, according to Rahman, that has successfully pushed back against the bail reform backlash gripping the rest of the nation: Illinois. Its bail reform measure, which was supposed to go into effect this past January, is caught up in litigation over whether the state can constitutionally eliminate cash bail. But it offers public officials a lesson in messaging.

“It was like The Purge,” said Rahman of organized efforts in Illinois and New York to roll back bail reform. “There were fake print newspapers handed out with fake mugshots. Fear mongering. Really scary stuff. New York Democrats ran for the hills, or they adopted tough-on-crime stances. Meanwhile, Illinois Democrats, no matter what their concerns were, did not talk about it. They reminded people why we need bail reform. They figured out a playbook and stuck to it, and [as a result] polling in Illinois shows support for bail reform.”

Rahman said the fight over bail reform is now moving to places such as Harris County, Texas (where Houston is located), and Shelby County, Tennessee (which includes Memphis). 

“These are good local efforts on pretrial,” she said. Officials in these jurisdictions “are saying, ‘If we are using money bail, then we are going to make sure that wealth is not the factor, but the risk of violent crime is.’”

Jullian Harris-Calvin, director of Greater Justice New York at Vera, said it costs New York City $556,539 to incarcerate one individual in Rikers for a year. To put that same individual in supportive housing, where they would have access to addiction and mental health treatment and other services, it costs $41,833 per person per year. 

“Bail reform hasn’t negatively affected public safety,” Harris-Calvin said. “Instead of adopting these political framings and executing them in a way that is harmful, leaders should put our money where their mouths are. We need supportive housing and services that prevent crime. We know those cost less than jails and prisons.”

Keep reading as there’s more news to use below, and make sure to come back here every Friday for the week’s highlights. If you don’t already and would prefer to get it in your inbox, you can subscribe to this newsletter here. Have a great weekend.

News to Use

Trends, Common Challenges, Cool Ideas, FYIs, and Notable Events

• Civics scores drop. Another set of test results shows the effects of the Covid-19 pandemic on American students: Nearly all of the nation's eighth graders fell behind in U.S. history and civics in 2022 compared with 2018. The National Assessment for Education Progress, also called the Nation's Report Card, released the latest scores Wednesday. Declines were expected because of the shift to remote teaching and the loss of instruction time when the pandemic hit. But for these subjects, experts also worry that friction over what students are taught in American history classes, especially about race and slavery, are a factor.


• Judges scrutinize police use of Google search terms. The Colorado Supreme Court on Thursday grappled with privacy and freedom of speech concerns in a groundbreaking legal case. For the first time in Colorado—and, attorneys said, nationally—the judges are considering whether police can legally issue search warrants that require Google to turn over account information for any users who searched particular keywords in a particular time frame. Such “reverse keyword search warrants” require Google to scan through potentially billions of search histories in order to find the keywords sought by law enforcement. Attorneys challenging the warrant said that the massive scope amounts to an illegal search that violates Google users’ constitutional protections for free speech and against unreasonable searches.


• Vermont allows out-of-staters to use assisted suicide law. Republican Gov. Phil Scott removed the residency requirement for medical aid-in-dying care, making Vermont the first state to do so legislatively. Now an adult with a terminal illness living out-of-state will have the option of consulting with a Vermont-licensed physician about receiving a prescription for a drug that will hasten death. Meanwhile, Massachusetts is considering a bill to legalize medical suicide. Aid-in-dying is widely supported by voters there. A new poll shows that about 7 in 10 of those surveyed were in favor of allowing patients suffering from terminal medical conditions to end their lives in consultation with their doctors.


• Texas bill would wrest elections power from county. A bill that would force Harris County to get rid of its elections administrator is closer to becoming law. The Texas House Elections Committee approved a bill Monday that would abolish the county elections administrator position in Harris County and transfer election duties to the county clerk and tax assessor-collector. In last November’s general election, Harris County had to extend voting for an hour after various polling places had malfunctioning voting machines, paper ballot shortages and long waiting periods. More than 20 lawsuits from losing Republican candidates have been filed against the county, citing those problems and seeking a redo of the election.


• Teachers strike in Oakland. Public school educators in Oakland, California, went on strike Thursday after contract negotiations in which they’re seeking higher pay and more efforts to address social concerns failed to yield a deal. Oakland Unified School District schools still were open to the district’s roughly 34,000 students and will be throughout the strike unless otherwise announced, with principals and office staff helping educate and supervise students, district officials have said. The strike—the second in four years in Oakland—includes teachers, counselors and others represented by the Oakland Education Association, which has said it is seeking, in part, pay that would bring salaries up to the county median.


• No more lighting up with gas. New York will become the first state to ban gas stoves in new construction beginning in 2026, enacting a proposal that inflamed political conversations in the final weeks of the state budget negotiation. Proponents say the change moves the state much closer to meeting sweeping emissions goals in the next decade.


• Oregon secretary of state resigns. Oregon Democratic Secretary of State Shemia Fagan resigned less than a week after it came to light that she had taken a lucrative side job consulting for an embattled cannabis company at a time when her office was auditing the state’s marijuana program. Oregon ethics laws allow public officials to have private jobs and many lawmakers, who are part-time paid government employees, do so in order to make ends meet. It’s extremely rare, however, for a full-time statewide elected official to take outside work. Meanwhile, former Florida Democratic gubernatorial candidate Andrew Gillum, who came within a whisker of defeating Republican Ron DeSantis in 2018, was acquitted Thursday of lying to the FBI in a corruption case that also involved illegal use of campaign contributions.


• Inslee looks to cement legacy as climate governor. Just days after he announced he will not seek re-election, Washington Gov. Jay Inslee signed a slew of climate laws related to moving the state closer to zero carbon dioxide emissions. Some of the bills signed by Inslee include requiring the state to drastically reduce greenhouse gasses. Inslee said this will be achieved using revenue generated by the state's new cap-and-investment program which is expected to generate more than $2 billion for state investments in clean energy, transportation, and natural habitat management and restoration.

Picture of the Week

Colorado Department of Transportation officials are struggling with a new sinkhole on Highway 133 in the western part of the state. Officials have closed the highway in both directions. Spring runoff reportedly contributed to the sinkhole’s development. Rapid snowmelt has led to flooding from the Dakotas to Minnesota in recent weeks, and the potential for catastrophic flooding has been predicted in California. (Photo by the Colorado Department of Transportation)

Government in Numbers

136 billion gallons

The amount of water Texas lost from infrastructure breaks and leaks in 2020. It lost another 132 billion gallons of water in 2021, according to data submitted by public water suppliers to the Texas Water Development Board. That’s enough water to fill the AT&T stadium—home of the Dallas Cowboys and the third-largest stadium in the NFL—about 170 times over.

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