In recent years, many jurisdictions in the U.S. have taken steps to reform their cash bail systems due to concerns about fair treatment of defendants and potential disparities in release decisions. Though, there is no consensus about what should replace cash bail, and there are numerous concerns about the potential public safety risks associated with bail reform. Proponents of bail reform advocate for reducing or eliminating the use of monetary bail to reduce jail populations and reduce income disparities. However, opponents of bail reform argue that reforms have resulted in more defendants committing crimes while on pretrial release. To date, the research has been mixed regarding the impacts of different bail reform efforts, but newer research seems to be suggesting the obvious — that bail “reforms” are linked to increases in crime.
Different models of bail reform
Bail reform can occur at the state-level, county-level, and city-level. Among the many states implementing bail reform include California, New York, New Jersey, Vermont, Illinois, and Alaska. In addition, many individual jurisdictions have implemented their own bail reform policies, such as Atlanta, Philadelphia, Houston, and Chicago. The different bail reform models vary, with some places abolishing money bail altogether or abolishing bail for certain crimes. Many of these places have also emphasized the importance of pretrial services and supervision to manage these individuals released into the community. Another common practice is to institute risk assessments to increase data-driven release decisions by judges.
In some cases, there are specific legal guidelines for what judges should consider when imposing bail, such as flight risk and dangerousness to the community (e.g., South Carolina), as well as a defendant’s ability to pay bail (e.g., California, Maryland, Missouri, and Fort Bend County TX) or post bond (e.g., Chicago and Travis County TX). Some states allow people to be released on their own recognizance for certain low-level crimes (e.g., Indiana, Ohio, and Philadelphia), while other localities/states have decided to completely eliminate bail for certain crimes such as nonviolent misdemeanors (e.g., Cook County IL, Prince George’s County MD, New Orleans, Atlanta, and New York).
In places where judges are still allowed to consider dangerousness and flight risk in their decisions, they typically do so using risk assessment instruments (e.g., Virginia, Kentucky, Colorado, San Francisco, and Los Angeles County). The use of risk assessment tools is one of the most common bail reform measures discussed, and dozens of jurisdictions have adopted risk assessment tools. Risk assessments rely on an algorithmic approach to combine item ratings into risk scores, the results of which indicate an individual’s dangerousness and likelihood to recidivate, subsequently informing pretrial decisions. In theory, those rated as low-risk can be released without bail or any other conditions, and those rated as higher-risk may benefit from extra interventions. Risk ratings are are usually based on factors such as prior convictions, incarceration history, failures to appear, violent offenses, pending cases at the time of arrest, and age. The risk scores and accompanying recommendations do not replace judicial discretion, but are used to guide their decision as to whether to release or detain a defendant pretrial.
Some state-level courts ordered the statewide adoption of a risk assessment tool (e.g., Arizona), but cities and counties have also taken the lead on implementing risk assessments in some places. For example, California has not adopted a statewide risk assessment, though at least 49 counties in California use a pretrial risk assessment tool to inform pretrial release decisions, such as San Francisco and Los Angeles County, that rely on a risk assessment tool called the Public Safety Assessment (PSA). The PSA is one of the most widely used risk assessment instruments, but some states/jurisdictions have created their own risk assessment tools, such as Colorado, Virginia, and Washington, D.C. Unfortunately though, it is still unclear whether risk assessment tools are sufficient (especially on their own) in predicting dangerousness and recidivism likelihood. Further, it is hard to know how accurate these instruments are for individual subgroups, such as violent offenders or younger offenders (who are in general, more likely to recidivate).
Along with bail reform, many places have expanded pretrial supervision and services to enhance monitoring capacity of defendants and provide them with resources that help them desist from crime and encourage them to attend court hearings using services like text notifications or transporation assistance (e.g., Yamhill County, OR, New Jersey, Washington, D.C.). Other states divert funds to community-based providers through the form of Justice Reinvestment Initiatives (JRIs), which rely on computerized risk assessment tools to predict which defendants are most likely to “succeed” on community supervision. In theory, expansion of pretrial services would allow defendants to reside in the community without impacting public safety. However, when it comes to pretrial services and supervision, there is an enormous financial cost and time burden, and there is no research supporting its effectiveness. And regardless of pretrial supervision, people who are not subject to bail requirements are less likely to appear in court, particularly if they have substance abuse issues.
Bail reform has come under scrutiny due to concerns about public safety and unintended consequences well as the lack of research supporting the effectiveness of risk assessment tools and pretrial services. A primary argument against bail reform is the potential impact on public safety and increases in crime, particularly violent crime. These public safety concerns call into question whether bail “reform” is truly cost-beneficial. For example, see this story about a habitual felon, released under New York’s bail reform law, who murdered a man riding the subway last April. Had the murderer been held on bail for stealing a car and his four prior felonies, the victim would still be alive.
Pretrial release is even more controversial in domestic violence cases because of the serious harm it presents to the victims. While felony domestic violence crimes are often considered “serious enough” to warrant pretrial detainment, misdemeanor domestic violence offenses are often lumped into the category of offenses to be excluded from bail requirements. But even in misdemeanor cases, if batterers are released pretrial, it presents serious harm to the victims by giving offenders the opportunity to further harm their victim out of anger. One notorious example is the case of Amy Rezos, who was shot twice in the head by her husband while he was out on bail after nearly beating her to death two weeks prior. This eventually led to the 2005 passing of Ohio’s “Amy’s Law,” which toughened the requirements for granting bail to persons accused of domestic assault or violation of a protection order. Though, pending bail reform efforts in the state could override this law by allowing anyone charged with misdemeanor domestic violence offenses to be released within 72 hours. Other reform policies, such as those in Chicago, have also been critiqued for putting domestic violence victims at risk.
Bail reform in New York City
One place where bail reform has received significant attention is New York. As noted in this post from last week, a recent study found that the post-2019 bail reform efforts significantly decreased public safety in New York City.
The New York Bail Reform Act has gone through a few revisions since it was first introduced, but each variation of the law sets a limited number of “qualifying offenses” for which judges were allowed to set bail. In the 2019 version of the law, more than 350 crimes were deemed non-bailable. “Qualifying offenses” were mostly violent felony offenses, such as first-degree robbery, first-degree burglary, and sexual assault. Almost all non-violent offenses, including felonies and misdemeanors, were excluded from the list.
Exclusions from the list ranged from crimes such as residential burglary, unarmed robbery, and almost all felony drug cases to more serious crimes such as manslaughter and criminally negligent homicide. Because these crimes were deemed “non-bailable,” judges were prohibited from setting bail regardless of the person’s criminal hisory. As an alternative, judges were required to either release the defendant on their own recognizance, set nonmonetary conditions for release, remand them without bail, or use electronic monitoring to track the defendant while in the commuinity. When charged with a qualifying offense, judges are able to set bail, but are required to impose the “least restrictive” option that is necessary to ensure a defendant would return to court. Further, they are not allowed to consider an offender’s recidivism likelihood when making bail decisions.
From 1993 to early 2020, index crime in the city steadily declined by nearly 76%. Though, after 2019 bail reforms took effect in January 2020, crime in New York City began to increase. During the first three months following the reform total index crimes increased by 20%, with more than 3,000 additional crimes being committed in comparison to the same time period one year earlier. This included 755 more robberies, 351 more felony assaults, 536 more burglaries, and 532 more car thefts relative to the same time period of 2019. Crimes for which judges could no longer set bail also increased by double digits: burglary increased 26%, car theft increased 68%, grand larceny increased 16%, and petit larceny increased 19%.
Interestingly, some crimes did go down in the beginning of 2020. By July 2020, overall crime in the city actually decreased by 2.83%, fueled by a 20.3% drop in grand larcencies. This was likely due to stay-at-home orders during the pandemic, which decreased the number of available victims in the community. During this same time, there was an alarming rise in other crimes — from 2019-2020, there was a 45.8% increase in burglary and a 60.8% increase in auto theft — both “non-bailable” offenses under the new law. Also concerning was the 23.1% increase in murders and 43.9% increase in shootings. And while the pandemic seemed to temporarily slow some crimes, overall crime in most categories began to climb back up after stay-at-home orders ceased. By the time the city opened up more fully in the first few months of 2022 (even after bail reform was revised a few times), index crimes had risen by a total of 36.6% in comparison to the same time period two years prior.
In July 2020, the NYS legislature passed additional reforms in response to these unprecedented crime increases. These amendments expanded the “qualifying offense” list to include more offenses, such as residential burglary, witness intimidation or tampering, sex trafficking, assault or arson as a hate crime, conspiracy to commit murder, money laundering in support of terrorism, Class A-I felony drug cases, escape from jail, and bail jumping. The authors from the Manhattan Institute poignantly note that, “When you consider that the legislature…had to add escape and bail jumping to the list of crimes for which a judge can set bail, you begin to comprehend the lack of thought that went into the 2019 law.”
By April 2022, the legislature again expanded the list of qualifying offenses, adding criminal possession of a firearm (but only if the defendant committed that crime while released on recognizance or under nonmonetary release for a separate misdemeanor), criminal possession of a defaced firearm, and criminal sale of a firearm to a minor. The legislature also added a provision stating that when setting bail, a judge is allowed to consider whether a defendant has violated any order of protection in the past, and whether their current charge allegedly caused serious harm to an individual or group of individuals. But even with these additions, the judge is still not allowed to remand the defendant for public safety reasons or risk of re-offending — a defendant’s lengthy criminal record is still not sufficient to set bail unless their current charge is a qualifying offense.
Like many other jurisdictions, New York has promoted their supervised release program (which dates back to 2009), sponsored by the city’s Criminal Justice Agency (CJA), as a successful alternative to bail. This was after an initial analysis (conducted by CJA themselves) in 2013 found that only 22.5% of defendants in the program were re-arrested. But the re-arrest rates were only tracked during the program, and that analysis did not cover the time period between the plea and sentence, nor did it look at long-term effects. Later, a lengthier analysis of the program was conducted, covering the years 2013-2019. The results were published in May 2019, revealing a 51% re-arrest rate (and a 44% felony re-arrest rate) for defendants in the program.
Manhattan Institute researchers recently conducted a more careful analysis on the impacts of bail reform in New York City. They examined defendants who were arrainged between July and September 2020 and followed them through September 2021. There were 3,680 felony arraignments during that time, and 27% of those defendants were re-arrested before their case was disposed (5.6% for a violent felony). Of those felony arraingments, 2,564 (69.7%) defendants had a prior conviction or pending case when they were arraigned. Among the latter group, 31% were re-arresed before their case ended (6.9% for a violent felony). Of those 2,564 defendants, 492 (19%) were also deemed a flight risk. Among those deemed to be a flight risk, half of them were re-arrested while their case was pending (8.7% for a violent felony). Prior to 2019 bail reforms, these individuals with prior/pending convictions, especially those who also posed a flight risk, would typically have bail set. But under bail reform, judges cannot set bail on defendants with extensive prior criminal records unless their new crime is a qualifying offense. Thus, these individuals were eligible for pretrial release under non-monetary conditions, which allowed them to commit more crime.
Not surprisingly, the Manhattan Institute analysis also found that defendants released on non-monetary release had substantially higher re-arrest rates than those released on recognizance or where bail was set. In other words, the non-monetary release program correlates with future criminal activity. Of all defendants arrested for felonies in NYC, 70% have a prior conviction or pending case at the time of their arrest. Of those with prior convictions, 50% of those released in the non-monetary release program will be re-arrested before their case ends. Further, these numbers don’t even cover crimes that go unreported or unsolved. In the first quarter of 2022, NYPD’s clearance rate on burglary was 36.9%, robbery was 49.4%, grand larceny was 17.2%, and auto theft was 12.8% — this means that re-arrest rates for people released without bail are probably even higher than what the data here show.
In the Manhattan Institute article, the authors make several recommendations to help improve bail reform efforts in New York:
1. At an absolute minimum, jurisdictions need to continue collecting data on people released pretrial, particularly their re-arrests between plea and sentence, re-arrests post-sentence, and the total numbers of re-arrests (rather than the current method of focusing on the number of defendants re-arrested).
2. Secondly, judges should be given more discretion regarding pretrial release decisions. Judges should be allowed to set bail, remand, release on recognizance, or conditions of release for any crime and any defendant. There could still be a presumption of release for misdemeanors and nonviolent felonies, but judges should be able to override this presumption based on the defendant’s prior record, pending cases, the nature of the crime, and flight risk. Currently, judges are not able to consider criminal history or flight risk when making pretrial decisions.
3. Similarly, there should be a presumption of bail, remand, or nonmonetary conditions for defendants charged with violent felonies or weapons offenses. Judges could also override this presumption if the defendant has social ties to the community or no prior offenses. Most importantly, judges should be able to remand defendants without bail if they are deemed a danger to the public or at a high probability of re-offending. Currently, judges are not allowed to detain someone unless they are charged with a qualifying offense, regardless of whether they present a danger to public safety or whether they pose a flight risk.
4. Judges should also be allowed to change the conditions of release for any crime (not just qualifying offenses) should the defendant violate any of the original release conditions or fail to comply with court-ordered conditions of release. This might include more restrictive release conditions, higher bail, or remanding of bail. Currently, judges cannot remand defendants or set bail for people released on a non-qualifying offense due to their failure to comply with court-ordered conditions of release.
While the findings from the above study only represent one city, they are consistent with other research, including studies conducted in Los Angeles County, Chicago, and the state of New Mexico. Findings from Los Angeles County, where judges rely on the PSA risk assessment tool, showed that people subject to cash bail (followed closely by those released on bond) were less likely to recidivate and more likely to appear for court when compared with people released on citation-only or people released on their own recognizance. In Chicago, another city relying on the PSA, bail reforms coincided with a 45% increase in the number of released defendants committing new crimes and a 33% increase in the number committing new violent crimes. This study also found that a large number of aggravated domestic violence charges were dropped after bail reform, presumably because batterers being released pretrial were able to intimidate their victims into not pursuing charges. In New Mexico, a 2021 study found that, post-bail reform, about 42% of those released pretrial had at least one pretrial failure, and 15% of released defendants were charged with a new offense while on release (5% charged with a new violent offense). Even more common were failures to appear in court and failure to comply with conditions of release.
Despite the reserarch, jurisdictions across the country continue to implement bail reforms, claiming that they are evidence-based. Progressives suppporting these reforms successfully reduce the jail/prison population with no detrimental impact on public safety. Unfortunately though, this claim is far from the truth. Many of the existing studies have found mixed results, and those finding “no impact on public safety” tend to be less rigorous, relying on carefully curated methodologies with short follow-up periods to produce “desirable” results. Yet, newer studies with longer follow-up periods and stronger methodologies have since found that bail reform has (not surprisingly) resulted in increases in crime and recidivism.
When it comes to pretrial release decisions, judges might be able to release very specific groups of offenders without negatively impacting public safety. This might include nonviolent older defendants, people with clean prior records, or people charged with fraud or public order violations. But judges definitely should be detaining some offenders, especially those who are violent, have lengthy criminal histories, or who have prior domestic violence convictions, as these factors are frequently linked to recidivism. Further, it should go without saying that judges ought to consider a person’s overall dangerousness and risk fo recidivism when making pretrial release decisions. Alas, current bail reforms in many jurisdictions have precluded judges from doing so, and the restrictive nature of bail reforms limits judicial discretion on how to handle dangerous individuals. To say that a judge can never set bail on a defendant with numerous prior (and often violent) convictions is illogical and not in the interest of public safety.
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