NEW YORK, NY– Scrutinize and The Zimroth Center at NYU School of Law published a report recently analyzing the impact of a bail reform bill in New York in 2019 designed to eliminate bail for misdemeanors and non-violent felonies.
In short, the bill’s not working as planned.
The purpose of the measure was to reduce pretrial detention and combat economic inequalities in New York criminal courts, reducing the number of people detained during pretrial detention and addressing economic disparities, reported Scrutinize and The Zimroth Center at NYU School of Law in “Setting Bail to Fail: The Gap Between Bail Reform’s Goals and Reality.”
This bill, which took effect Jan. 1, 2020, set new ground rules for pretrial incarceration by limiting the requirements to be eligible for pretrial detention by excluding misdemeanors and non-violent felonies.
The requirements of the bail reform included judges offering three forms of bail where one of the three had to include Partially Secured Surety Bond (PSSB) or Unsecured Surety Bond (USB) because “these two forms of bail were intended to provide more affordable alternatives to the commonly used cash bail and commercial bonds.”
This bill reform also aimed to reduce the use of commercial bonds by providing more suitable bail options as well as allowing more defendants to remain free while awaiting trial.
The research conducted by Scrutinize and The Zimroth Center at NYU School of Law, that supported this bill’s enactment, found “negative public safety outcomes, including higher recidivism rates, exacerbated racial disparities, and harsher case outcomes such as increased conviction rates, longer sentences, and prolonged incarceration.”
The report by Scrutinize and The Zimroth Center looks at how judges decided to set bail per the 2019 legislation.
It was revealed that judges tend to follow the requirements implemented in the bill by offering a minimum of three requirements and the options of partially secured or unsecured surety bonds.
Judges were found to contradict the statutory intent of the law, where a pattern was revealed in connection to resistance to the law and systemic challenges that face the bail process, as revealed by the report by Scrutinize and The Zimroth Center.
On the other hand, the research center’s analysis finds that judges do not set bail amounts with statutory intent: “In at least 82.1 percent of cases, judges did not set PSSB to be the most affordable bail option.” In 13.3 percent of cases, judges set PSSB so high that the accused would have to resort to choosing from two options, cash bail or commercial bond.
The findings of this report reveal judges making commercial bond payments more affordable than both PSSB upfront payments and cash bail in at least 78 percent of all monetary bail cases.
The state of New York provides nine forms of bail where cash and commercial bonds were favored by judges. After the enactment of the 2019 legislation, judges have overwhelmingly used three forms of bail: cash bail, commercial bond, and PSSB.
The report defines the types of bail referred to throughout the report. Cash bail is when the accused, or their loved ones, must pay the full bail amount in cash. Cash bail is usually refundable upon the accused’s return to court and meeting other obligations, regardless of the final verdict.
The report explains how a commercial bond is a nonrefundable fee paid to a bonds person, the bonds person pays the bond to the court and the accused is released—making the bond person liable for the bond amount if the accused does not appear in court.
This form of bail has been criticized by Governor Cuomo, in 2016 and again in 2018, emphasized the need to reform the bail system and specifically criticized the commercial bail industry. The New York City Bar Association also called for the elimination of commercial bail bonds.
The Scrutinize and The Zimroth Center notes a Partially Secured Surety Bond (PSSB) allows the accused to partially pay the bail amount whereas loved ones can pay the partial deposit to the court.
The reports said PSSB is also fully refundable if the accused complies with the court by attending all court dates and meeting other obligations. If the accused does not follow through with court obligations, the full bail amount, instead of partial, is to be paid.
PSSB is a more affordable option as it is paid to the court rather than a for-profit business, like the use of commercial bonds, the report notes, adding, “PSSB is less financially burdensome than commercial bonds while still offering a similar financial structure for judges seeking to balance incentivizing court appearances with affordability.”
The report also defines an unsecured Surety Bond (USB) requiring no payment and release of the accused where family and friends appear to the court to take responsibility to pay the bond if the accused does not follow court obligations. Additionally, it is one of the most affordable options as it does not require an upfront payment to the court.
Following the 2019 bail reform law, PSSB or USB is required to be one of the three bail options, with the intention to offer affordable bail options, states the report, adding “these two new forms of bail would enable people to be released on appropriate conditions to ensure their return to court, rather than be detained subject to bail they could not otherwise afford.”
As reported by Scrutinize and The Zimroth Center, by making these two bail options mandatory, this “provided judges with a financial tool that mirrored the structure of commercial bonds, without the predatory practices often associated with the commercial bond industry.”
Although, since at least 1969, the legislature has recognized that PSSB and USB are more affordable than other types of bail, it has not been a favorable option for judges since until 2019 cash and commercial bonds were favored. This change in judicial behavior offers more affordable and equitable bail options for those in New York, as the findings by Scrutinize and The Zimroth Center at NYU School of Law show.
In response to the law, New York County Supreme Court Judge Daniel P. Conviser expressed support for the legislation stating, “These provisions were obviously designed to reduce the number of defendants with bail conditions who would be unable to post bail and would therefore remain incarcerated pending trial.”
This report by the Scrutinize and The Zimroth Center focuses on the effects of the bail reform law from January 2020 to December 2023. Official court pretrial data was utilized to examine judicial compliance with the bail provisions.
Over three years it was discovered that judges implemented the bail procedures, but failed to properly provide affordable alternatives, specifically commercial bonds. These findings were determined by examining the minimum upfront payment required for a defendant’s release—specifically, the PSSB deposit, the commercial bond fee, or the total cash bail amount.
The report also said the primary focus was geared toward judges that only set three forms of bail: cash bail, commercial bond, and PSSB.
The report by Scrutinize and The Zimroth Center found that in 99.9 percent of the cases, judges met 2 of the requirements to set three or more bail options and offer Partially Secured Surety Bond (PSSB) or Unsecured Surety Bond (USB) as one of the three options.
In 82.1 percent of the cases judges did not offer PSSB as the most affordable bail option, going against the purpose of the bail reform bill. Additionally, in 78 percent of the cases it was shown that judges set commercial bonds as the most affordable bail option, once again contradicting the bill’s purpose to reduce commercial bail reliance.
These findings reveal rigid outcomes regarding the 2019 legislation, as there have been instances where the legislation is being violated, the report concludes.
The report by Scrutinize and The Zimroth Center also reveals that it is believed the legislation is being violated due to misunderstandings—such as judges not understanding how PSSB and commercial bond upfront payments are calculated, leading them to set commercial bond amounts at levels that incentivize defendants to choose the latter.
Also, judges may set lower commercial bond amounts so they can outsource return-to-court concerns to commercial bond companies, rather than burden the court system.
Based on the findings, recommendations by the Scrutinize and The Zimroth Center at NYU School of Law include providing judicial trackers to ensure compliance with bail reform requirements, mandatory forms that provide explanations as to why PSSB is less affordable than other bail options, judicial training to properly implement PSSB, interview judges to understand challenges following the reform bill, and implement ways to streamline and expedite payments for this option.
