Activists take part in a protest over New York State bail...

Activists take part in a protest over New York State bail reform laws in Times Square in February 2020. Credit: Sipa USA via AP / Gabriele Holtermann-Gorden

ALBANY — In the second full year of bail reform in New York, new data shows the number of criminal defendants who are rearrested after being released remains relatively low — 1 out of 6 — and has ticked downward.

It also indicates that judges set bail in fewer than half the cases in which bail was clearly an option.

Those are just some of the takeaways from updated reports from two state agencies, the Office of Court Administration and the Division of Criminal Justice Services. The offices have been compiling data since New York lawmakers first overhauled the bail law in 2019 and amended it further, in 2020 and this year.

Experts have pointed out there are no comparable historical bench marks to measure rearrest rates since the bail law was changed. But the numbers provide some information for New Yorkers to sift through some of the political rhetoric in a heated election year when the governor’s office and all 213 legislative seats are up for grabs.

Among the trends in the data, the rearrest rate for defendants is similar whether the original charge was a misdemeanor — for which judges almost never have a chance to set bail — or a felony, for which they can set bail.

The number rearrested for violent crimes also is small: less than 3%.

Here are some takeaways from the data:

Overall rearrest rates are 1 in 6

Over the 12-month period ending Dec. 1, 2021, about 17% of those arrested for an alleged criminal charge were rearrested on another charge before their original case was resolved — meaning 83% weren’t.

That rate holds for both misdemeanors — where judges rarely have discretion to set bail — or felonies.

Also, that rate is lower than 2020, when about 23% were rearrested.

Rearrest rate for violent crimes is low

A big fear among some critics is that defendants who are released will commit a violent crime. But the report says 2.4% of all defendants were rearrested later on a violent felony for the period ending Dec. 1 — meaning 97.6% were not. Also, that rate is down from 3.3% in the previous 12 months.

Even if bail was set in the original case, the rearrest rate for a violent felony was close to the same: 2.8%.

When bail can be set

Bail can be set for cases involving violent felonies and some nonviolent felonies, such as witness tampering, money laundering, criminal possession of a weapon on school grounds and sex trafficking.

Bail cannot be set for most misdemeanors — except when there are other factors, such as the person is on probation or the subject of an order of protection. Certain sex-offense misdemeanors also are bail-eligible.

The charge of second-degree attempted assault — which was leveled, for example, on a Rochester-area man who tried to attack Republican gubernatorial candidate Lee Zeldin — is classified as a nonviolent offense (generally because it results in no injuries) and, therefore, is not bail-eligible.

Changes approved by the State Legislature earlier this year also allow a judge to consider other factors, such as whether the defendant is facing charges in multiple cases.

Bail doesn’t change the rearrest rate much

When bail is set in an original case, about 15% of defendants are rearrested on other charges, which is close to the average of all cases, 17%.

Within the numbers, misdemeanor suspects who posted bail are rearrested at a higher rate, 21%, than felony suspects, 13%.

Highest rearrest rate is in supervised release 

Where is there a jump? In cases in which the person was released subject to supervision, such as wearing an electronic ankle bracelet: 35%. Notably, this category generally has the highest rate across the board, whether the original crime was a felony or misdemeanor, was violent or not.

Marie VanNostrand, an analyst with Luminosity, which studies criminal justice data, said this population of defendants is more likely to have multiple and serious cases in their history but maybe none that trigger being held on bail. So they are placed in the most restrictive condition available, “non-monetary supervision,” but sometimes end up cycling through the system more than once.

Even when they can, judges set bail 42% of time

The state database doesn’t definitively earmark which cases involve judicial discretion to set bail. Judges hold the authority in the most serious cases: Violent felonies; some specially designated nonviolent felonies and misdemeanors; and cases with certain extenuating circumstances, such as the subject already being under law-enforcement supervision.

Of the roughly 70,000 cases fitting those categories over the period beginning Jan. 1, 2020, bail is set less than half the time: About 42%. One factor in this rate might be judges, when determining whether to detain or release a defendant or set bail, are supposed to use the "least restrictive" option to ensure the person returns for future court dates.

Among this group where bail is an option, the overall rearrest rate is 18% — or right around the overall average for all cases, 17%. About 4% of these rearrests were for violent felonies.

When bail was set, the rearrest rate was 15%.

But there was a higher rearrest rate, 22%, in cases in which the defendant was released on his own recognizance or released with supervision. If looking only at those on supervised release, the rearrest rate is approximately one-third.

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