Fear Mongering Threatens Bail Reform

EKU Online > Fear Mongering Threatens Bail Reform

Over the last decade, most states have engaged in some form of bail reform designed to reduce the number of people detained while awaiting trial.  This reform, however, is likely to become the latest example of rational correctional reform to be undone amid public outrage generated by a reported spike in violent crime and high-profile cases involving perpetrators out on bail.  As is so often the case with criminal justice policy, elected officials are stoking public fears and calling for policymakers to roll back progressive bail reform. 

Crime Statistics

According to the FBI, since 2020, the murder rate increased by nearly 30 percent and the rate for aggravated assault increased by 12 percent.  Although police and politicians in some cities are blaming bail reform for this uptick in violent crime, there is little evidence to support these claims.  For example, the Prison Policy Initiative compared data in nine (9) jurisdictions from before and after the adoption of pre-trial reforms and reported that “all but one of these jurisdictions saw decreases or negligible increases in crime after implementing reforms” (prisonpolicy.org).  According to Richard Rosenfeld, a criminologist at the University of Missouri-St. Louis, the more likely drivers for the increased rates of violent crime are pressures from the pandemic, changing police tactics, social unrest after the killing of George Floyd, and increased availability of firearms.

Crimes Involving Perpetrators Who Were Out on Bail

What is more difficult to reconcile are the tragic cases involving perpetrators who were out on bail.   Most recently, Christina Yuna Lee was stabbed to death by a man out on bond in New York City.  Reports indicate that the suspect has a long criminal history, leading community activists to question why he had been released from jail on the earlier charges.  In response, NYC’s mayor, Eric Adams, called for rolling back the 2019 statewide bail reform that prohibited cash bail for most misdemeanors and non-violent felonies; only in the most serious cases were judges allowed to consider a defendant’s dangerousness when making bail decisions. 

Public Safety Impacts

So how has this impacted public safety?  According to a report by New York’s Office of Court Administration, only two (2) percent of the released defendants across the state were rearrested for a violent felony in the first year that new bail policies took effect.  The tragedy surrounding these two (2) percent, however, has led criminal justice players (i.e., police, prosecutors, judges) and politicians to point fingers at policies making it easier to get out of jail, like the bail reform spreading across the U.S.  The truth of the matter is that these rare events are very difficult to predict, and there is no guarantee that these incidents would have been prevented under previous practices associated with bail decisions. 

The Merits of Bail Reform

Much of the nation’s bail reform includes a more objective decision-making process and the reduced use of cash bail to minimize the disparity between who gets out of jail and who doesn’t.  This reform was prompted by studies showing that too many people, mostly poor and Black, were detained pre-trial merely because they couldn’t afford to pay bail.  For example, among pre-trial detainees in Philadelphia jails, 40 percent were detained not because of a predicted failure to appear in court, or because they were deemed as dangerous, but because they were unable to post $50 (10% of a $500 bond) to secure their freedom.  Meanwhile, wealthier detainees able to pay bail were released regardless of the seriousness of the offense and the risk they presented to public safety. 

The inequities do not stop there.  Research demonstrates that, on average, people detained pre-trial fare worse upon sentencing.  This is a logical outcome when you consider that, due to their incarceration, they are less able to participate in their own defense, their lives have become unraveled, and they show up to court shackled and dressed in an orange jumpsuit.  Moreover, studies reveal that the longer someone sits in jail at the pre-trial stage, their “place in the community becomes more destabilized,” making recidivism more likely (Arnold Foundation).

Correctional Budgets

High rates of pre-trial detainment also wreak havoc on correctional budgets.  According to the Pretrial Justice Institute, pre-trial detainees make up two-thirds of jailed populations in the U.S. at the cost of $14 billion annually, a cost that is borne by cash-strapped local governments.  Most jails operate well beyond capacity with people sleeping on floors in unhygienic and inhumane conditions that contribute to the spread of disease, higher rates of violence, and increased litigation.  

For all these reasons, getting people out of jail at the pre-trial stage makes sense.  Impact evaluations reveal that new bail practices are working to reduce jail populations and inequities in bail decisions.  For example, New Jersey bail reform resulted in a 47% reduction in the jail population between 2012 and 2019 and “that holds true for defendants of all races” (New Jersey Courts).  As for public safety, the Pretrial Justice Institute encourages us to think of safety, as it pertains to pre-trial release, as a two-sided question stating that:

Of the 470,000 unconvicted people being held in jail on any given day, only a very small percentage may commit a violent crime if released, while virtually all face the risk of infectious disease and violence in jail, as well as the possibility of losing their job, housing, or children as a result of being detained. The risks to an incarcerated person have a ripple effect on their families and communities as well (pretrial.org).

The Bottom Line

In conclusion, bail reform is important, and it shouldn’t be undone through an emotional, knee jerk reaction to rare negative events that may be more reflective of bad decisions than bad reform.  Fear mongering has, historically, led to harmful public policies (e.g., the War on Drugs; three-strikes laws) that resulted in mass incarceration and racial inequities, while having limited impact on public safety.  Criminal justice policy must be driven by rational decision-making aimed at promoting a more just system capable of protecting all public interests. 

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By: Betsy Matthews, Ph.D., associate professor, EKU School of Justice Studies

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