Love it or hate it, New York’s hotly debated bail reform law just turned 5

It’s been five years since sweeping changes to New York’s criminal justice laws took effect.

The legislation, known generically as bail reform, limited the circumstances under which people who have been arrested can be held in jail as they await trial.

Progressives celebrated the measure, which they said would make the court system more fair and prevent low-income people from languishing in violent and run-down Rikers Island jails. But bail reform has also sparked widespread criticism from law enforcement, tough-on-crime conservatives and many New Yorkers who associate the changes with a pandemic-era spike in crime.

To cut through the rhetoric and misinformation, Gothamist put this guide together to bring you up to speed.

What is bail reform?

After bail reform passed, judges were no longer allowed to require defendants charged with most misdemeanors and nonviolent felonies to pay for their release from jail. The legislation passed in 2019 and took effect in 2020.

One goal was to reduce the jail population as the city moved toward closing the notorious Rikers Island. Many lawmakers and advocates were propelled by the death of Kalief Browder, who was arrested as a teen and spent three years on Rikers awaiting trial on charges that he stole a backpack. He took his own life after his release, and many saw bail reform as a way to prevent similar tragedies. Lawmakers also said whether people are held in jail while they wait for trial should not depend on how much money they have in the bank.

The measure didn’t get rid of bail altogether. Judges are still allowed to set bail for various crimes, including most violent felonies. For crimes that aren’t eligible for bail anymore, judges can release defendants on their own recognizance — meaning they can go home without paying anything — or they can release people with certain conditions in place, like electronic monitoring or travel restrictions.

Supervised release, which aims to connect people with resources while they’re awaiting trial, is now one of the most common pretrial release conditions. Its goal is to help defendants get back to court and avoid future arrests, as well as to connect them with housing assistance, mental health treatment and other services they may need. But the program has struggled to meet the surge in demand since bail reform took effect, especially as nonprofits providing services have taken on more clients accused of felonies. Judges ordered supervised release in about 60,000 cases between January 2020 and last June, according to state court data.

What is discovery reform? Is it different?

Discovery reform passed at the same time as bail reform, but it focused on a different piece of the court process. Lawmakers required district attorneys to share evidence with criminal defendants earlier on, so they have more information about the cases against them. The legislation set new deadlines and added requirements for different types of materials that prosecutors need to turn over. It also made the discovery process “automatic,” which means in most cases prosecutors are expected to turn over evidence whether or not defense attorneys ask for it. Before, defense lawyers had to make written requests for materials ahead of trial.

Since discovery reform took effect, district attorneys have said the requirements are too onerous and make pursuing all the cases on their dockets impossible. State data shows that prosecutors are dismissing cases at higher rates than previously, and the increase has been particularly stark in New York City.

In Brooklyn, for instance, prosecutors dismissed 37% of felony cases and 33% of misdemeanors the year before discovery reform took effect, not including special agreements where someone’s case is dismissed if they stay out of trouble for a certain amount of time after their arrest. By 2023, the dismissal rate had jumped to 56% and 48%, respectively, according to the last data from the state Division of Criminal Justice Services.

Public defenders have argued the new rules are essential for people to properly defend themselves in court, especially when they’ve been wrongfully arrested or overcharged.

Critics say bail and discovery reform are making New York less safe. Is that true?

Mayor Eric Adams and NYPD leaders have frequently criticized these measures. They’ve said the changes to bail and discovery made it too easy for people to get back on the street and commit more crimes.

At a recent press conference, NYPD Commissioner Jessica Tisch blamed state lawmakers for an increase in the number of people who have been rearrested for certain types of crimes while awaiting trial.

“The key driving factor is the revolving door of our criminal justice system, created in large part by legislative changes that took effect in 2020,” she said.

This is a common refrain that’s frequently repeated at press conferences, in the media and online, especially after high-profile crimes. And when people are arrested in high-profile cases while awaiting trial, it can scare New Yorkers and fuel debates about bail reform's effects.

State data shows the majority of people will not be arrested for another crime while they’re out of jail and waiting for their case to play out. Overall, rearrests have not jumped for people who have been released while awaiting trial, according to a 2023 study by the Data Collaborative for Justice. Eliminating bail actually reduced recidivism for some groups, including people charged with misdemeanors who had no recent arrests, the report said. But researchers found the rate of rearrest did go up for a small group of people who are considered “high risk.”

State lawmakers are now back in Albany. Will bail and discovery reform be back in the conversation?

The legislature has made various tweaks to this legislation in the years since it passed. In response to backlash and pressure from Gov. Kathy Hochul and Adams, lawmakers have given judges more discretion to set bail for certain crimes.

It’s unclear if the statehouse will make any additional changes to the bail laws this year. But some prosecutors and public defenders are hoping for adjustments to discovery reform. State Sen. Zellnor Myrie and Assemblymember Micah Lasher proposed a bill earlier this month intended to make it easier for prosecutors to get discovery materials from police and hand them over to criminal defendants.

Prosecutors say they often have to wait for law enforcement to gather and hand over reams of evidence, like body camera footage and police reports, which slows down the discovery process. Myrie and Lasher’s legislation would give DA’s offices direct access to police databases, to avoid those bottlenecks. The measure has garnered support from city prosecutors like Alvin Bragg and Eric Gonzalez. Public defender groups, including the Legal Aid Society and Brooklyn Defenders, have also expressed support.