Who Goes Home? Race, Discretion, and the New York Bail Reform Revisions

If true fairness existed in deciding freedom prior to trial, financial resources wouldn't determine who is released and who remains locked up. This ideology framed New York's bail reform initiative upon its implementation in 2020. The legislation sought to eliminate cash bail for the majority of misdemeanors and nonviolent felonies so individuals wouldn't be incarcerated simply for lacking the financial means to pay bail. Initial data was encouraging: there was a decrease in the number of people in jail, and there was a decline in pretrial detainment for minor offenses.

However, reforms enacted in 2020 are not the only ones applicable to the bail reform initiative. In 2023 and 2024 New York law makers revised the bail statute in order to increase judicial discretion and to limit the offenses that make a defendant eligible for mandatory release. These modifications, framed from a public safety perspective, ignored the re-introduction of the racial inequities that bail reform sought to eliminate.

Prior to bail reform, New York's justice system placed great reliance on cash bail, even for minor offenses. Defendants often had bail amounts set by judges that were unattainable for a majority of them, resulting in people being detained before trial, despite having a legal presumption of innocence. Losing a job, falling behind on rent, and being forced to plead guilty in order to get released were all potential consequences of pretrial detention. Research indicates that pretrial detention is a predictor of being convicted and receiving a harsher sentence.

This system disproportionately impacted Black and Latino New Yorkers. Due to enduring economic disparities and racially targeted policing, pretrial detention for Black and Latino defendants was significantly more common than for white defendants for the same alleged crimes. Breaking this pattern is what bail reform intended to accomplish.

And for a while, it worked. New York experienced significant reductions in pretrial detention across all levels of offenses after the reforms were instituted. Many people were able to avoid unjust detention and the disparities in pretrial detention among different racial groups were reduced, although not entirely eliminated.

Next came the adjustments. Due to the political atmosphere and public worries surrounding crime, judges’ ability to pretrial hold people was delineated, and the range of offenses applicable for bail was expanded. These adjustments gave authority to the judges, but more so to make arbitrary and discretionary calls.

This discretion is the reason why race is always a consideration. Discretion is supposed to work in a neutral manner, but ample studies indicate that such decisions as to “risk” and “dangerousness”, or even the perceived likelihood of compliance, have a grounding in bias. Social narratives that associate the Black and Latino race to crime, regardless of the aspects of the case, are what inform the decisions of the judges.

Under the revised bail laws, Black defendants are still more highly likely to be detained pretrial. Racial disparity tends to emerge in a more subtle fashion once discretion takes the place of categorical release, according to research. Latino defendants also face challenges of their own, in particular those with housing instability, language barriers, and inconsistent employment. These are all interpreted by the courts as flight risks, rather than recognizing a structural disadvantage.

White defendants usually are treated more favorably in discretionary systems. Even before the bail reform, white defendants were still more likely to be released, as they were viewed as less dangerous and less likely to fail to appear in court. When there is less rigid criteria in determining whether or not to impose a pretrial detention, inequities in pretrial detention are more likely to be sustained.

From a criminological perspective, the revisions to New York’s bail reform show yet another example of a failure to make the necessary encompassing, structural, and cohesive design of policy reforms. When the law is institutionally biased, the outcomes are still biased, no matter how neutral they may appear. Discretion without accountability is a sure way of emptying reform of its content.

The arguments over bail reform are not mainly about crime, but about the real implications of the presumption of innocence. The changes to New York’s reforms in 2023 and 2024 show that lacking clear and strong systems to counter bias in play, “Who goes home?” is a problem that still has a troubling racial answer. Until that answer changes, there is still much more work to be done on bail reform.