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 Sarah Staudt, July 6, 2023
Ending or limiting the use of monetary bail has become an increasingly common criminal legal system reform across the country. Reformers and researchers 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 data exist measuring public safety from before and after the adoption of pretrial reforms. All of these jurisdictions saw decreases or negligible increases in crime or re-arrest rates after implementing reforms.
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 83% 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. Any time spent in pretrial detention can increase rates of failure to appear in court and rates of re-arrest. And research shows that just a few 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 that come from jail churn. (Furthermore, research has found that pretrial detention actually increases the odds of a person being re-arrested in the future, which is clearly counterproductive from a crime rate-defined public safety standpoint.) Pretrial reform also alleviates jail overcrowding, and is a superior alternative to new jail construction for counties with overcrowded jails.
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. Unfortunately, the pretrial population rebounded during the COVID-19 pandemic; rates of pretrial incarceration in 2023 are only 25% below what they were in 2015.
- Public safety: Rates of violent crime fell between 2016-2018; homicides fell by 32% while rapes, robberies, assaults, burglaries, and thefts all fell by double-digit percentages. The percentage of people arrested for new crimes while awaiting trial changed by only 1 percentage point before and after reform, from 12.7% to 13.7%. In 2020, only 0.6% of people were re-arrested for a serious violent offense while awaiting trial.2
- 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 declined after 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, remained consistent; there was a 1-2 percentage point increase in re-arrests for all charges, but no increase in the rate of new arrests for violent felonies.
- 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. Since 2020, there have been three waves of rollbacks to the law, in June 2020, May 2022, and June 2023, which have narrowed the impact of these reforms.
- Impact: The pretrial population in New York City declined 40% from April 2019 to March 2020, directly after reforms were passed. Between January 2020 and January 2022, total jail populations fluctuated, but ultimately fell about 7%.
- 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. Unfortunately, misleading narratives about crime have continued to dominate news coverage about New York’s bail reform.
However, a plethora of studies have shown that bail reform has had either a neutral or positive impact on public safety. They show:
- People impacted by bail reform were no more likely to be re-arrested after reforms than they were before.
- Bail reform has reduced re-arrest rates: prior to reforms, 50% of people were re-arrested in the two years following arraignment in court; after reform, 44% were re-arrested.
- Between 2019 and 2020, violent crime rates rose around the country during the COVID-19 pandemic, just as New York began to implement its bail reforms. However, New York State’s violent crime rate rose by just 1% during this time, while violent crime nationally rose by 5%.
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, then-District Attorney Chesa Boudin announced his office would no longer ask for cash bail. After Boudin was recalled in 2022, his successor, Brooke Jenkins, revised the policy to reinstate the practice of asking for cash bail in some circumstances.
- Impact: The San Francisco Pretrial Diversion Project reduced the jail population by 47%.
- Public safety: Between 2019 and 2020, when cash bail was eliminated, San Francisco’s violent crime rate fell by over 15% while the national violent crime rate rose by 5%. 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 cited 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 2022, 93% of people were not re-arrested when released pretrial; in FY 2019, 99% were not re-arrested 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: Reforms led to an 11% increase in the number of people released on their own recognizance. Ninety percent of people charged with misdemeanors, and 32% of those charged with felonies, were released without having to post bail.
- Public safety: Researchers found that the percentage of people re-arrested pretrial decreased slightly following 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 re-arrested.
- Cook County, Ill.
- Reform: As of 2017, as a result of a court rule, judges must consider what people can afford when setting bail amounts.
- Impact: The pretrial population declined by about 16% between 2017 and 2022. The percentage of people released without cash bail has more than doubled, and the increase was most dramatic for Black people.
- Public safety: In the year following the court rule, overall violent crime in Cook County dropped by more than 10%. There was no statistically significant change in the likelihood of re-arrest while awaiting trial or of re-arrest for a violent crime. Since 2017, 96.5% of people are not re-arrested for a violent crime while released pretrial.
- 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:Pretrial release rates increased from 53% to 73% after reforms were implemented.
- Public safety: After reforms, the rate of re-arrest increased by only 2 percentage points, from 16% to 18%.
- 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: Only 3.1% of people were re-arrested in a pilot program that released low-risk accused people without bond.
- Harris County, Texas
- 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.
This is an update of our 2020 briefing of the same name, which was authored by Tiana Herring.
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. ↩
It’s important to note that different jurisdictions have different definitions of what qualifies as a “violent” or “serious” crime, which may partially account for differences in re-arrest rates for “violent” crimes in different states. ↩