Releasing people pretrial doesn’t harm public safety
When these states, cities, and counties began releasing more people pretrial, there were no corresponding waves in crime.
by Tiana Herring, November 17, 2020
As COVID-19 makes jails more dangerous than ever, people are looking closer at policies and programs that keep people out of jail and in their homes pretrial. Criminal justice reformers have long supported such measures, but opponents — including district attorneys, police departments, and the commercial bail industry — often claim pretrial reform puts community safety at risk. We put these claims to the test.
We found four states, as well as nine cities and counties, where there is existing data on public safety from before and after the adoption of pretrial reforms. All but one of these jurisdictions saw decreases or negligible increases in crime after implementing reforms. The one exception is New York State, where the reform law existed for just a few months before it was largely rolled back.
Below, we describe the reforms implemented in each of these 13 jurisdictions, the effect these reforms had on the pretrial population (if available), and the effect on public safety. We find that whether the jurisdictions eliminated money bail for some or all charges, began using a validated risk assessment tool, introduced services to remind people of upcoming court dates, or implemented some combination of these policies, the results were the same: Releasing people pretrial did not negatively impact public safety.
About 75% of people held by jails are legally innocent and awaiting trial, often because they are too poor to make bail. The overall jail population hasn’t always been so heavily dominated by pretrial detainees. As we’ve previously reported, increased arrests and a growing reliance on money bail over the last three decades have contributed to a significant rise in pretrial detention. And just three days of pretrial detention can have detrimental effects on an individual’s employment, housing, financial stability, and family wellbeing.
In this analysis, public safety is measured through the narrow lens of crime rates. But pretrial reforms promote other types of safety that are more difficult to measure, such as the safety of individuals who can remain at home instead of in a jail cell, children who are able to stay in their parents’ care, and community members who are spared the health risks (including, currently, the increased risk of COVID-19 exposure) that come from jail churn. (Furthermore, research has found that pretrial detention can actually increase the odds of future offending, which is clearly counterproductive from a crime rate-defined public safety standpoint.)
States and counties can and should build on these pretrial reforms. More progress can be made to continue reducing the number of people held pretrial, and address concerns such as racial bias inherent in pretrial risk assessment tools.1 But the data is clear: When it comes to public safety, these reforms are a step in the right direction.
State level reforms
- New Jersey
- Reform: In 2017, the New Jersey legislature passed a law implementing a risk-informed approach to pretrial release and virtually eliminated the use of cash bail.
- Impact: The pretrial population decreased 50% from 2015 to 2018. By 2019, the overall jail population declined 45%.
- Public safety: Violent crimes decreased by 16% from 2016 to 2018. There was a negligible difference in the number of people arrested while on pretrial release.
- New Mexico
- Reform: A 2016 voter-approved constitutional amendment prohibits judges from imposing bail amounts that people cannot afford, enables the release of many low-risk defendants without bond, and allows defendants to request relief from the requirement to post bond. (The Eighth Amendment already forbids excessive bail, but in practice, bail is regularly set at unaffordable levels in courts around the country.)
- The impact of this reform on the jail population isn’t known.
- Public safety: State-wide crime rates have declined since the reforms took effect in mid-2017. Furthermore, the safety rate, or the number of people released pretrial who are not charged with committing a new crime, increased from 74% to 83.2% after the reforms took effect.
- Reform: Kentucky began using a validated pretrial risk assessment tool in 2013. In 2017, the state began allowing release of low-risk defendants without seeing a judge. In addition, a statewide pretrial services agency is required to make a release recommendation within 24 hours of arrest, and reminds people of upcoming court dates via automated texts and calls.
- Impact: Judges have released more people on their own recognizance since 2013.
- Public safety: The new criminal activity rate, which measures the rate at which people commit new crimes while awaiting trial, has not changed.
- New York
- Reform: A law that went into effect on January 1, 2020 eliminated the use of money bail and pretrial detention for most misdemeanors and many nonviolent felony cases. It also prohibited judges from considering public safety in their release decisions. But on April 3, the bail reform was amended, scaling back some of the changes. The new law, which took effect on July 1, expanded the list of charges for which bail can be set and gave judges more discretion in setting conditions of release.
- Impact: The pretrial population declined 45% from April 2019 to March 2020. It is estimated that the April reform will result in an increase in the jail population, though it will likely still be lower than if no reforms were instituted at all.
- Public safety: The NYPD asserted in March 2020 that the original bail reform measures were a “significant reason” for increased arrests in six crime categories from February 2019 to February 2020. However, researchers from Human Rights Watch argued that the reforms had not been in place long enough to pinpoint them as the driving force behind a rise in crime, and accused prosecutors, police, and bail bond agents of spreading “sensational stories and misleading statistics” to kill the reforms. Ultimately, New York’s short implementation period (just three months) and the absence of more complete data make the original reform’s impact on public safety unclear.
County and city level reforms
- San Francisco, Calif.
- Reform: Following collaboration between various judicial and public safety departments, the city has used a validated risk assessment tool since 2016. The San Francisco Pretrial Diversion Project also helps by offering alternatives to fines, dismissals of charges for “first time misdemeanor offenders” who complete treatment plans, and other forms of support for people navigating the system. In 2020, the District Attorney announced his office would no longer ask for cash bail.
- Impact: The jail population has decreased by an average of 47%.
- Public safety: The city’s new criminal activity rate, which measures the rate at which people commit new crimes while awaiting trial, is 10%. This puts it on par with Washington, D.C. which is often used as a model of pretrial reform success.
- Washington, D.C.
- Reform: The District’s Pretrial Services Agency has used a risk assessment tool since the agency was created by Congress in 1967, but their reforms go much further: Judges cannot set money bail that results in someone’s pretrial detention, there are limits to the amount of time people can spend in jail after their arrest, and the Pretrial Services Agency can connect people to employment, housing, and general social services resources.
- Impact: Over 90% of arrestees are released without a financial bond.
- Public safety: In FY 2019, 87% of people were not rearrested when released pretrial, and 99% weren’t rearrested for a violent crime.
- Philadelphia, Pa.
- Reform: In 2018, the District Attorney’s office stopped seeking money bail for some misdemeanors and nonviolent felonies, which made up the majority of all cases.
- Impact: 90% of people facing misdemeanor charges were released without bail.
- Public safety: Researchers found no difference in recidivism after the reforms.
- Santa Clara County, Calif.
- Reform: Santa Clara courts began using a validated risk assessment in 2012, and their pretrial services agency sends court date reminders to those released pretrial. In addition, community organizations such as a churches partner with individuals to remind them of court dates, provide transportation, and offer other assistance.
- Impact: The number of people released without cash bail increased 45% after the reforms.
- Public safety: 99% of people released were not rearrested.
- Cook County, Ill.
- Reform: As of 2017, judges must consider what people can afford when setting bail amounts.
- Impact: The pretrial population has declined by about 16%. The percentage of people released without cash bail has doubled, and the increase was most dramatic for Black people.
- Public safety: The number of overall crimes and violent crimes have continued to decline. The vast majority (99.4%) of people who were released pretrial between October 2017 and December 2018 were not charged with any new violent offenses, and 83% remained charge-free while their cases were pending.
- Yakima County, Wash.
- Reform: Yakima County began using a validated risk assessment tool in 2015, at the recommendation of local judicial and public safety stakeholders. The county also implemented a pretrial services program that offers services like helping people obtain mental health or drug treatment and sending automatic court date reminders.
- Impact: After one year, pretrial detention rates decreased from 47% to 27%, and racial disparities decreased.
- Public safety: After pretrial services were instituted, the reoffense rate declined by 20%.
- New Orleans, La.
- Reform: A 2017 ordinance passed by the city council virtually eliminated money bail for people arrested on municipal offenses. Since then, the city has implemented a risk assessment tool and releases some low-risk arrestees without bail.
- Impact: There was a 337% increase in the number of arrestees released without bail from 2009 to 2019 (1.9% to 8.3%).
- Public safety: A subsequent crime analysis found that defendants released without paying bail were no more likely to be rearrested than those who paid bail.
- Harris County, Texas
- Reform: Since 2019, the majority of misdemeanor defendants automatically qualify for jail release on no-cash bonds.
- Impact: While it’s unclear how much the pretrial population has decreased, the gap between the number of white and Black defendants who are detained pretrial has narrowed.
- Public safety: Rearrest rates did not increase after the reforms were implemented.
- Jefferson County, Colo.
- Reform: Following a pretrial reform pilot study, Jefferson County eliminated its money bail schedule and began using a risk assessment tool in 2010.
- The impact of this reform on the jail population isn’t known.
- Public safety: People released without money bail were slightly less likely to have a new arrest or filing than those released on money bail.
For more information on pretrial detention, see our reports on jail growth and the ways money bail perpetuates cycles of poverty.
Risk assessment tools base their results on existing criminal justice data, which in turn reflect years of biased policing and racial disparities. And ultimately, final decisions over detainment or release are made by people, who are subject to bias. Thus, while risk assessment tools give the impression of fairness, how fair they are in practice depends on the historical data they are based on, as well as the individual using the tools. ↩