Does Bail Reform Lead to More Crime?

by Ethan Corey, The Appeal

In 1966, President Lyndon B. Johnson signed the Bail Reform Act, which he announced would overhaul the country’s “archaic, unjust, and virtually unexamined” bail system and “insure that defendants are considered as individuals and not as dollar signs.”

The law, along with similar legislation at the state level, helped drive down the number of people jailed before trial. But the backlash to these reforms was quick, as politicians like Richard Nixon blamed reform for releasing “dangerous hard-core recidivists.” By 1984, 34 states and Congress had passed legislation expanding judges’ ability to jail people before trial.

Today’s movement to rein in the use of cash bail is now at risk of suffering a similar fate. Once again, pro-carceral forces have made bail reform a scapegoat for rising crime. Many officials, apparently unswayed by the lack of evidence that recent increases in shootings and homicides are linked to bail reform, have begun turning on existing laws. Focusing on spurious claims about bail reform and crime rates, however, ignores the proven harms of jailing nearly 5 million people each year before any determination of guilt.

Reform—and Backlash

Between 2011 and 2019, proponents of bail reform won victory after victory across the country. Kentucky kicked off the trend in 2011, passing legislation that made release without bail the default option for most defendants. By the time New York enacted a bill in 2019 restricting the use of bail for most crimes, at least 13 other states and dozens of local jurisdictions had adopted policies aimed at reducing the use of bail.

Then came the backlash. From the start, opponents of reform had predicted that bail reform would be, in the words of one bail bond executive, “the worst thing ever for public safety.” But when crime rates remained stable —and even declined in some jurisdictions—reform advocates were quick to argue that it was possible to reduce the use of cash bail without triggering “The Purge.” Jurisdictions like New Jersey and Cook County (Chicago) reduced their jail populations by more than a quarter without any uptick in crime rates.

In 2020, the landscape changed. Prompted by sensational headlines about a handful of isolated crimes allegedly committed by people on pretrial release, Democratic leaders in the New York state legislature announced plans to roll back the reforms just over a month after they had taken effect. As shooting and homicide numbers increased during the pandemic, bail reform became an easy target for figures across the political spectrum, from Donald Trump to Chicago Mayor Lori Lightfoot. Proposals to jail more people pretrial are now on the rise, with anti-reform bills pending or on the way in New Hampshire, New Mexico, New Jersey, New York, and Texas.

Does Bail Reform Lead to More Crime?

Despite the sensational headlines, there is no solid evidence that bail reform leads to more crime. But that’s partly because there’s very little rigorous research on how bail reform affects crime in general. Identifying the impact of a particular policy change on crime rates is difficult, because crime rates can rise or fall for many reasons.

With a wide variety of bail reform measures and no set standards for data collection or evaluation, most bail reform studies have focused on outcomes that are easier to directly attribute to specific laws, such as the percentage of people who are rearrested while on pretrial release. Most research has found that reducing the use of cash bail had little to no effect on the percentage of people who are rearrested while on pretrial release. Some studies have found that jailing people before trial may even increase their likelihood of rearrest in the future.

But as critics of bail reform have pointed out, with more people being released pretrial, crime can increase even if pretrial rearrest rates remain unchanged. For instance, one study in Cook County found that the number of people on pretrial release rearrested for new crimes rose by 12 percent during the first 15 months of bail reform, even though the percentage who were rearrested decreased slightly.

This criticism ignores the fact that the vast majority of crimes are not committed by people on pretrial release. The Cook County study looking at the first 15 months of bail reform documented about 4,000 arrests of people on pretrial release—just over 4 percent of the nearly 90,000 total arrests the Chicago Police Department reported making in that period. Data from other jurisdictions shows a similar trend: A report last month by the New York City Comptroller found that only 5 percent of people arrested were on pretrial release.

The bottom line: There isn’t enough evidence to say definitively that any given bail reform proposal would increase or decrease crime. All of the existing research suggests that any effect would be relatively small.

Crime Rates Are Only Part of the Story

On the other hand, there is overwhelming evidence that the status quo is broken. A January report by the U.S. Commission on Civil Rights concluded, “Pretrial detention, as currently used, tears apart individual lives, families, and entire communities.” Research shows that even a short stint in jail can have lasting consequences: lost jobs and housing, increased likelihood of pleading guilty, and higher odds of being arrested for new crimes in the future. Incarcerated people and their loved ones pay around $2 billion each year in nonrefundable bail fees, money which disproportionately comes from communities of color and low-income people.

Considering those facts, even if bail reform did lead to a marginal increase in crime rates, the benefits of reducing pretrial incarceration could still be worth the cost. Across the country, nearly five million people go to jail every year. Any honest discussion of bail reform has to weigh these concrete benefits—fewer lost jobs, fewer evictions, fewer children in foster care—against the uncertain prospect that a small increase in crime might follow.

None of this is to say that proponents of bail reform should dismiss concerns about increased crime. Nor should they make impossible promises that these measures will necessarily reduce crime. The available evidence suggests that bail reform has little impact on crime one way or the other. Instead, these concerns should be an opportunity to build support for promising solutions that don’t rely on putting people in jail, such as supportive housing, community treatment programs, and better infrastructure in communities with high levels of crime.

Opponents of bail reform want to focus the debate on crime, because it’s much easier to convince people to accept the monstrous cruelty of the criminal legal system when they’re scared. Supporters of reform should reject their framing and emphasize the failures of the existing system. Advocates can make the case for ending cash bail on its own merits, without letting pro-carceral forces set the terms of the debate.

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