Bail reform opponents have argued that people charged with a serious crime might not show up for a court date if they are not held on bail.
But a new study shows no clear link between the two.
The Data Collaborative for Justice, part of John Jay College, published the study showing that occurrences of “failure to appear” − FTAs in law enforcement parlance − vary widely among different categories of crime. The study also found that defendants with multiple convictions, and particularly for people with multiple misdemeanor cases, were the most likely to fail to appear at a court date.
The study found that defendants with five or more misdemeanor convictions had the highest failure to appear rate at 35%. By comparison, defendants with two or more violent felony convictions had a failure to appear rate of 26% across the state, according to the study.
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These results, the authors of the study argue, should lead more judges to consider allowing more people to go free pretrial, as New York State law explicitly states that the only consideration judges should be taking into account when deciding whether to set bail or remand defendants is the defendants’ likelihood for returning for their scheduled court appearances.
“In principle, the whole backlash about whether or not pretrial recidivism spiked after bail reform, in a way, misses the mark because the bail law itself only allows for consideration to flight risk,” Stephen Koppel, one of the study’s authors, said.
Koppel said various court systems across the state take into account some of the factors that showed higher risk of failure to appear. But the algorithms deployed by the system used in New York City fail to take into account some of the most important predictive factors.
“There was a potential to look at the specific offense type and try to assess risk based on that, which hasn’t been done,” Koppel said.
While some politicians and prosecutors may want “dangerousness” to be considered when judges make decisions about setting bail or remanding defendants, state law prohibits any such consideration since 1970.
“Either judges should be following the law in New York, and only considering risk of flight during the pretrial period or change the law and allow for considerations of dangerousness.”
Koppel said that judges have an opportunity to reassess the data they use when deciding whether to set bail or remand, given what the data says about failure to appear occurrences.
“As the study shows, there are notable mismatches between decision-making and FTA risk, particularly around violent offenses,” he said.
The study also broke data into regional categories, separating New York City, New York City’s suburbs and the rest of the state, which the authors categorize as upstate.
Upstate saw both the highest rates of judges setting bail or remanding and the highest rates of failure to appear across many of the categories listed in the report.
“It’s very clear that judges are more aggressive with setting bail or remand upstate relative to New York City,” Koppel said.
Even so, fewer people appear at their court dates upstate.
“They’re not seeing much benefit of doing that in the way of reducing FTA risk as you would expect,” Koppel said.