PRESUMED INNOCENT FOR A PRICE:
The Impact of Cash Bail Across Eight New York Counties

MARCH 2018

 PRESUMED INNOCENT FOR A PRICE:
The Impact of Cash Bail Across Eight New York Counties

In eight of
New York’s 62
counties between
2010 and 2014,
over 90,000
people spent a
day or longer in
custody on bail.

Across New York State tens of thousands of New Yorkers are held in
city and county jails, not because they have been convicted of a crime,
but because they cannot afford to pay for their release while awaiting
trial.
The harms of unaffordable cash bail are unequivocal: people lose their
jobs, homes and families while detained. People also forfeit their rights
to trial when pleading guilty in exchange for release. Yet little has been
known about how many people across the state have been locked up
because they did not have the means to pay bail, about the charges they
faced or how long they were kept in jail.
To better understand the impact of bail practices in New York, in 2015
the New York Civil Liberties Union sent Freedom of Information Law
requests to a sample of eight small, medium and large counties across
the state asking for five years of data. The information we received
offers a stark glimpse into what New Yorkers have had to endure.

IN JUST EIGHT OF THE STATE’S 62 COUNTIES ALONE, WE
FOUND THAT BETWEEN 2010 AND 2014:

•  more than 90,000 New Yorkers spent a day or longer in
custody on bail;
•  more than 45,000 were held for a week or longer;
•  black pretrial detainees were twice as likely as white
pretrial detainees to spend at least one night in custody on
bail;
•  more than 35,000 New Yorkers spent at least one night in
custody on a bail of $1,000 or less, and more than 21,000 on
$500 or less;
•  60 percent of people held on bail had only a misdemeanor
or violation as their most serious charge;
•  more than 5,000 New Yorkers were held on bail charged
only with violations; and
•  petit larceny and misdemeanor criminal possession of
a controlled substance were the most common charges,
and the most serious charges against a fifth of all pretrial
detainees.

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New York Civil Liberties Union

 Of the 45,651
pretrial
detainees who
spent one week
or more in
custody, one-fifth
had a bail of
$500 or less.

Population and Length of Stay
In the five-year period between 2010 and 2014, 177,390 individuals
were held in custody pretrial in the eight counties reviewed alone.1
Of these pretrial detainees, 113,015 people, or 64 percent, had a bail
set. Ninety thousand New Yorkers spent at least one night in
a county jail because they could not post bail.2 Over half of this
group (45,651 people) was in custody for one week or more.

Table 1: Number of Pretrial Detainees with Set Bail, 2010-2014
County
Albany
Dutchess
Monroe
Niagara
Orange
Schenectady
Ulster
Westchester
Eight County Total

Total

12,733
12,309
27,923
11,800
12,657
4,508
6,344
24,741
113,015

1 or more days in
custody
10,391
9,196
24,997
6,483
8,617
3,023
4,635
22,734
90,076

7 or more days in
custody
5,816
5,691
11,806
2,369
2,501
1,249
2,088
14,131
45,651

The proportion of people who were not able to post bail the day it was
set varied
widely across counties,
55 percent of pretrial
Width
width ranging from
width
width
detainees18in Niagara County18to 92 percent in Westchester
County.18
The
18
proportion of pretrial detainees who remained in custody for seven
days or more ranged from just under 20 percent in Orange County to 57
percent in Westchester County.
Across the eight counties, people of color were detained pretrial longer
than whites. While black and white New Yorkers each accounted for 45
percent of pretrial detainees who spent any time in custody after bail
was set in their case, 48 percent of those who spent at least one night
in custody were black compared to 41 percent white, and 50 percent of
those who spent at least one week in custody were black compared to 38
percent white.3

1 All numbers in this report exclude pretrial detainees with the following most serious charges:
escape; fugitive; violations of probation/parole/conditional release; unspecified violations of
Family Court Act; and court orders or punishments. These were excluded because factors
associated with each may affect pretrial release eligibility.
2 Length of stay in custody refers to the number of calendar days between an individual’s
admission and discharge from custody.
3 Analysis of outcomes by race was limited to black and white pretrial detainees because only
three counties had Hispanic or Latino as a category, and all other groups accounted for less than
five percent of the pretrial population with a set bail.
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 FIGURE 1

Proportion of Pretrial Detainees with Set Bail by
Length of Stay in Custody

White New Yorkers were nearly two times more likely (27 percent)
than black New Yorkers (14 percent) to be released the same day their
bail was set, and in all counties sampled, remained in custody overnight
at a lower rate. The disparity between the proportions of black and
white pretrial detainees who were able to post bail the day it was set
was the greatest in Westchester County.

FIGURE 2

White New
Yorkers were
two times more
likely than black
New Yorkers to
be released the
same day their
bail was set.

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Rate of White Detainees Released Day Bail Set per
Black Detainee Released Day Bail Set

New York Civil Liberties Union

 Bail Amounts
In the eight counties sampled over the five-year period, more than
110,000 people spent time in custody after bail was set in their case.
Nearly two-thirds of bails were set at $2,500 or less, half at
$1,000 or less and one-third at $500 or less. Thousands of people in
each county could not readily pay these amounts to be released.

Of the more than 90,000 pretrial detainees who spent at least one
night behind bars after bail was set, 40 percent (35,679 people) had a
bail of $1,000 or less and 24 percent (21,833 people) had a bail of $500
or less. In eight counties alone, nearly 10,000 New Yorkers stayed
overnight in jail on a bail of $250 or less.

Of the 45,651 pretrial detainees who spent one week or more in
custody, half (22,205 people) had a bail of $2,500 or less, one-third
(14,940 people) had a bail of $1,000 or less, and one-fifth (8,808) had a
bail of $500 or less. In Monroe County alone, more than 1,900 people
spent one week or more behind bars on a bail of $250 or less.

Presumed Innocent for a Price

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 60% of

people held on
bail had only a
misdemeanor or
violation as their
most serious
charge.

Most Serious Charges4
Most New Yorkers held on bail had been charged with minor
offenses. In the eight counties alone in this five-year period, more than
60 percent of pretrial detainees who spent time in custody after bail was
set (68,000 people) were charged with only misdemeanors or violations.
The proportion of pretrial detainees with these low-level charges was
greater than half in each of the eight counties, ranging from 55 percent
in Albany County to 71 percent in Niagara County.

FIGURE 3

Most Serious Charges Against People Held on Bail

4 A misdemeanor is a criminal offense other than traffic infraction of which a sentence in excess
of 15 days but not greater than one year may be imposed. A violation is the least serious type of
proscribed activity, a non-criminal offense other than a traffic infraction for which a sentence to
a term of imprisonment of up to 15 days or a fine of up to $250 may be imposed. (New York State
Penal Law, Article 10). https://www.omh.ny.gov/omhweb/forensic/manual/html/chapter1.htm.
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New York Civil Liberties Union

 FIGURE 4

Numbers of People Held on Bail by Most Serious Charge

Misdemeanors
More than half of New Yorkers held on bail had a misdemeanor
as their most serious charge. Of the 62,320 people who could not
readily post bail for misdemeanor charges, 78 percent had a bail of
$2,500 or less, 61 percent had a bail of $1,000 or less, and 42 percent
had a bail of $500 or less. Nearly 19 percent (12,000 people) of those who
had a misdemeanor as their most serious charge spent time in custody
on a bail of $250 or less.

More than 25,000 pretrial detainees with a misdemeanor as their
most serious charge spent one week or more in custody. Sixty-five percent had a bail of $2,500 or less, 46 percent had a bail of $1,000 or less,
and over one-quarter had a bail of $500 or less. Ten percent of those who
spent a week or more in custody with a misdemeanor as their most serious charge (nearly 2,500 people) had a bail of just $250 or less.

Presumed Innocent for a Price

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 While misdemeanors encompass a broad range of charges, the majority are non-violent. Of the more than 62,000 people who spent time
in custody with a misdemeanor as their most serious charge, the three
most common charges were:
• 
• 
• 

Petit Larceny, which is the unlawful taking of property or services
valued under $1,000,
Misdemeanor Criminal Possession of a Controlled Substance,
which does not involve sales, and
Criminal Contempt in the Second Degree, which can include
insolent behavior in the courtroom.

Of those held on bail for any amount of time with a misdemeanor as
their most serious charge, 34 percent (or 21,141 people) had one of these
three charges as their most serious charge. This share increased to 40
percent for those held in custody for a week or longer (9,965 people). Of
the more than 45,000 pretrial detainees held for one week or longer on
any charge, these three misdemeanors accounted for 22 percent.

Violations
In the eight counties sampled, 5,803 people spent time in
custody charged with no more than a violation. Nearly threequarters spent at least one night behind bars, and more than 20 percent
spent one week or more in custody. More than 70 percent of those held
on a violation had a bail of $500 or less. Of those who spent one week or
more in custody, more than half had a bail of $500 or less.

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New York Civil Liberties Union

 The most common violations charged were Harassment in the
Second Degree, Disorderly Conduct, and Trespass, which combined
accounted for charges against 85 percent of all pretrial detainees who
had a violation as their most serious charge. New York State’s General
Criminal Statute stipulates that the maximum fine punishable for any
of these three violation is $250.5 Of those who had one of these three
charges as the lone charge in their case, 41 percent had a set bail that
exceeded the maximum fine they could have been required to pay if
found guilty.

FOR INFO & TO
TAKE ACTION
PLEASE VISIT:
NYCLU.ORG/
JUSTICENY.

RECOMMENDATIONS

The purpose of bail is to ensure someone returns to court, not to
exact punishment before conviction. Yet data from the counties
sampled over this five-year period reveal that tens of thousands
of New Yorkers were jailed without having had their day in court
simply because they could not pay.
To reduce the numbers of New Yorkers trapped in the state’s
bail system, and to ensure justice does not depend on the size
of someone’s bank account, New York needs to make the
following reforms to its bail practices:
•  People charged with misdemeanors and nonviolent felonies
should be released before trial.
•  Jail time before trial should only be used when a court finds
that nothing else will ensure a person will return to court.
•  Bail amounts should not exceed what someone can afford to
pay and should not be set without lawyers present.
•  Judges should be required to consider alternatives to money
bail and should put their reasoning for any bail decision in
the record.
•  Whenever someone remains in custody because they cannot
afford to pay bail, judges should be required to revisit their
bail decision.
•  Risk assessment tools, which rely on flawed and often biased
data, should not be used to make bail decisions.
•  Courts should no longer allow for-profit insurance bail
bonds.

5 NYPL § 80.05 (4) https://www.nysenate.gov/legislation/laws/PEN/80.05
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