What bail reform actually shows by the numbers
Quick quiz: what is the goal of bail reform? If your first thought was “to allow people accused of crime to avoid responsibility,” you flunk the quiz. Crime is indeed a serious problem, but blaming it on bail reform is inaccurate. The topic was exploited for scaremongering in recent political campaigns, but now we can look at it in a cooler climate.
If your first thought was “to reduce racial discrimination by assuring that people of color accused of committing crimes do not go to jail,” you also fail. Perhaps you’ve focused on racial justice in this debate, but the bail reform law says nothing about race. It went into effect at a particularly difficult time — two months before COVID lockdown and six months before the murder of George Floyd and resulting protests. It was unrelated to these events.
If your first thought was “to avoid incarcerating people accused of crimes — who, after all, at that point have not been found guilty — because they do not have money to pay for a bail bond,” you passed the quiz. Previously, judges often required defendants charged with nonviolent crimes to pay money for release. A great many could not pay and were jailed until their court dates. While there, they would lose their jobs and strain their family connections — thus destroying the little social capacity they and their communities had. Moreover, this system pressured innocent people to plead guilty just to avoid pretrial detention.
If you failed the quiz, you may say that holding the criminally accused in jail before their court dates is unfortunate for them personally, and uncomfortable to the idea of “innocent until proven guilty,” but in fact it keeps the guilty from committing crimes while awaiting trial. This concern seems plausible, so researchers dug into crime statistics to see how many people committed “new crimes” while on pretrial release. The number is small and mostly limited to those charged with nonviolent crimes, which is not surprising because the new bail law still permits judges to require bail from those accused of violent crimes, with the result that many of these are jailed pretrial.
If you failed the quiz because you thought the law was intended to reduce racial disparities, you might argue you should nevertheless get credit for at least recognizing this side effect of bail reform. You would point out that after the law took effect, criminal defendants of racial and ethnic minority status were less likely to be jailed waiting for their cases to be heard.
True. But so were white defendants. We conducted a study of the effect of the bail law on racial and ethnic disparity. We found that the new law was beneficial to all racial and ethnic groups.
The bail law took effect in January 2020. Comparing before/after statistics from 2019 to 2021, the percentage of white defendants required to pay money for pretrial release in felony cases declined 26%. The percentage declines for Black and Hispanic defendants — 14.0% and 15.8%, respectively — were less but still a sharp reduction.
So Black defendants are still more likely to be required to post a money bond and to stay in jail if they cannot pay, and when judges do require arrestees to post bail money, higher average amounts are required of both Latino and Black defendants than of whites. But insofar as the new bail law sharply reduced the use of cash bail for everyone, the worst effects of pretrial detention are being lessened across the board.
All defendants with limited economic means benefitted from the expansion of release mandates. Defendants of color, who tend to cluster towards the lower end of the economic scale, reaped sizable benefits from bail reform because they are overrepresented in arrests relative to their population share.
Surprisingly, the new law also had the welcome effect of regularizing bail practices geographically. Beforehand, bail practices varied widely among municipalities and counties. Afterwards, the likelihood that judges would require arrestees to pay money bail became more uniform across New York State.
Fixing racial injustice was not the goal of bail reforms. They worked as intended — they curtailed the use of money bail and reduced the harm that disproportionately falls on poorer individuals. Poor defendants, both white and nonwhite, kept their family and community ties while awaiting their court date, and taxpayers did not pay for them to sit in jail. These changes are a win for everyone.