Policy Paper Suggests Bail Reform Has Only ‘Minimal’ Effect on Public Safety

By Leslie Acevedo and Perla Brito

NEW YORK, NY – Bail reform is controversial, with some cities, counties, and states taking steps to make changes in pretrial detention and policies intended to reduce or eliminate the use of monetary bail, write researchers in a policy paper by the Harry Frank Guggenheim Foundation.

Monetary bail puts poor and minority defendants in an unfair position as many of them remain in jail because they are unable to pay the bail or fees they are given in court, the policy paper notes.

But, the writing notes that most defendants who need to post bail end up doing so, and critics claim that allowing arrestees to be free while they await trial puts the public at risk and, as a result, may increase crime.

HFG states nearly 68 percent of people held in local jails are awaiting trial which means a majority of them—nearly half a million people—have not yet been convicted of a crime. Instead, they are awaiting the outcome of their cases while incarcerated.

Yet, HFG adds, each year the number of people who enter jails is higher than those awaiting trials. In fact, in most years more than 10 million people enter jail after being arrested and can stay there up to a few hours or a few days.

Researchers Don Stemen and David Olson allow that pretrial is a form of deterrence, a way to protect the public and a way to ensure arrestees appear at their court hearings—and permitting arrestees who are too dangerous to be a part of society while they await trial can put the public at risk.

HFG’s authors, on the other hand, suggest some may pose an unacceptable risk of flight from prosecution. However, most people in pretrial detention are there because they cannot afford bail. Being “held on bail” means arrestees can be released whenever, but only if they are able to post a certain amount of money.

Both pretrial detention, which is often imposed, and pretrial release, which requires a certain amount of payment, disproportionately affects poor and minority defendants, the HFG writers claim.

They also note critics of monetary bail have found that most people currently held pretrial pose little or no threat, either of harming anyone or evading prosecution, and can safely be released without being required to post bail.

By considering the 11 bail-reform jurisdictions, researchers were able to determine the effect, if any, of those policy changes on crime.

In six jurisdictions, they found, “Violent crime decreased in the year after reforms…It decreased more than the national average did in that year, or it decreased while the national average increased.”

HFG’s authors said violent crime increased while the national average decreased in the same year in four jurisdictions. Violent crime increased but less than the national average did in one jurisdiction.

Examining information from Cook County (Chicago), Harris County (Houston), Philadelphia, and New Jersey, allowed the researchers to “(d)etermine with reasonable precision changes in the number of property and violent crimes or criminal charges between the year before reforms and the year after; we could also evaluate the proportion of any such changes attributable to defendants released pre-trial in the year after reforms.”

HFG’s study said releases were responsible for a greater number of criminal charges filed in these jurisdictions than were pre-bail reform releases due to “(a)fter reform a larger proportion of defendants were released, making the overall pool of released defendants larger.”

Changes attributed to the released defendants accounted for .4 percent compared to 3.2 percent of all cases charges, and according to the study, “The vast majority of new charges were non-violent in nature.

“Neither violent or nonviolent crimes or charges increased markedly immediately after jurisdictions implemented bail reform,” according to the researchers, who add proper policy analysis requires other consequences in the experience of being held in jail to be considered such as loss of employment, housing, etc.

They said, “Arrestees held in jail for any length of time are—compared to those with the same charge and equivalent records who are released immediately—more likely to be convicted and, once released, both less likely to show up for trial and more likely to be re-arrested before trial.”

Based on the analysis, findings noted in the HFG study suggest “(p)retrial detention and eliminating money considerations from decisions about detention have had minimal negative effects on public safety.”