Three years ago, New York State adopted a law ending the assessment of cash bail in most cases involving misdemeanors and nonviolent felonies. The law aimed to reduce the risk that someone would be jailed because they could not afford to pay for release and reduce the unnecessary use of incarceration, which can have a profoundly disruptive effect on peoples’ lives.
Many police leaders and some politicians have been against these bail reforms from the start. Now, amid a new legislative session, the law has come under renewed scrutiny as critics seek to blame it for recent increases in violent crime, which rose nationwide in 2020 and 2021 as the pandemic gripped the nation and ravaged the economy. Most recently, Gov. Kathy Hochul proposed changes to the law, after initially calling for a patient and data-driven approach to evaluating its effects.
Here, we review what we know so far about bail reform and its impact on public safety. Critically, we find no evidence to believe that bail reform drove recent increases in violence.
Bail eligibility depends on several factors.
New York’s bail reform legislation went into effect at the start of 2020 and, together with revisions passed just a few months later, changed the likelihood of monetary bail being assessed pending the outcome of a criminal case. Broadly speaking, the law separates cases into two categories, based on the alleged crime involved.
According to the new law, judges have the option to set bail in almost any case involving a violent felony. In these “bail eligible” cases, a defendant must pay an assessed bail or face detention. In virtually all other cases, which include most misdemeanors and nonviolent felonies, judges may release people on their own recognizance or impose some other set of conditions to ensure their return to court. Such conditions include restrictions on travel or supervision by a pretrial supervision agency.
When deciding whether to release a person or set bail, the law requires judges to focus solely on the conditions that will ensure that the person returns to court. That means, unlike most other states, New York judges cannot consider their subjective view of a person’s “dangerousness” when deciding what release conditions to set. New York’s approach, which dates back to the 1970s, reflects an attempt to preserve the presumption of innocence and reduce racial biases against defendants. State legislators carefully considered revisiting this rule in 2020 but ultimately decided against it.
Notably, judges also retain the ability to set bail in some cases considered high-risk. Judges may set bail for defendants who have been released and are rearrested for another offense, provided both charges are felonies or Class A misdemeanors and involve harm to a person or property. For example, a judge may set bail for a person who was charged with punching someone in a bar fight, released, and then arrested for injuring someone in another fight. (Notably, Hochul’s proposal would go further, allowing judges to set bail almost any time someone is rearrested after initially being released, even for a low-level misdemeanor.) Other circumstances can make a case bail eligible, too, such as when someone is charged with a felony offense while on probation.
There is no evidence linking bail reform to the 2020–21 crime increase.
Many have argued that bail reform is responsible for rising crime in New York State, both in and out of New York City. But crime rose all across the country in 2020, making it unwise to look for explanations that are confined to New York.
Additionally, in the nearly two years since implementation, no direct evidence has emerged linking bail reform to rising crime.
It is true that New York City saw a sudden increase in crime from 2019 to 2020, with an especially stark increase in murders, which rose from the 319 in 2019 to more than 450 in 2020. Shooting incidents in the city roughly doubled during the same period. Statewide, the murder rate also rose from 2.9 to 4.2 killings per 100,000 people. According to one analysis, “the recent rise of violence has been concentrated in areas characterized by poverty and racial segregation.”
But the best available information suggests that bail reform is not the primary driver of these increases in crime. One recent analysis by the Times Union of Albany suggested that relatively few people released under the new law went on to be rearrested for serious offenses. The Times Union reviewed state data on pretrial releases between July 2020 and June 2021, identifying nearly 100,000 cases where someone was released pretrial in a decision “related to the state’s changed bail laws.” Just 2 percent of those 100,000 cases led to a rearrest for a violent felony; of these, 429 cases led to a rearrest for a violent felony involving a firearm. Roughly one-fifth of all cases resulted in a rearrest for “any offense, ” regardless of severity, such as a misdemeanor or nonviolent felony.
These findings are preliminary, and future researchers will certainly build on them. But as a first attempt to study the issue, the Times Union’s analysis suggests that as many as 80,000 people may have avoided jail incarceration due to cash bail because of the 2019–20 reforms and went on to pose no documented threat to public safety. (An opinion column in the New York Post cited the same data to argue that 43 percent of pretrial releases resulted in rearrest, but arrived at that conclusion by focusing on a small subset of just 4,062 cases.) The state’s data does not provide a point of comparison — i.e., are these rearrest rates higher or lower since bail reform’s enactment? But a dashboard maintained by the nonprofit New York City Criminal Justice Agency focusing on the percentage of people awaiting trial in the community and rearrested in a given month also appears to show little change in rearrest trends since 2019. A new report by New York City Comptroller Brad Lander cites CJA’s data to conclude that “the share of people awaiting trial in the community who are rearrested remained nearly identical before and after implementation of bail reforms.”
That means any attempt to link bail reform to rising crime should be evaluated skeptically. Indeed, some early arguments about the effects of bail reform have been directly disproven. In 2020, the New York City Police Department claimed that bail reform and recent jail releases had led to an increase in shootings. But according to a New York Post analysis, the NYPD’s own statistics proved otherwise. Between January and late June 2020, according to NYPD data reviewed by the Post, “just one person released under the statewide bail reform laws” had been charged with a shooting.
Crime rose in jurisdictions both with and without bail reform.
Increases in violence over the last few years are undeniably tragic developments, but they must be considered in context. New York State’s murder rate remains below the national average. City and state crime increases were also, unfortunately, far from unique. Between 2019 and 2020 the national murder rate rose by roughly 30 percent, and assaults jumped by around 10 percent. These increases were felt in communities of all sizes, political alignments, and geographies. Notably, new research by a team of economists also shows that progressive local law enforcement policies appear to have had no impact on the crime increase.
Further, there are signs the murder spike may have leveled off last year. Murders in New York City increased by roughly 4 percent between 2020 and 2021 — still rising, but much more slowly. (Officials have not yet shared data on statewide crime trends in 2021.)
Crime is complex, and policymakers should be wary of simplistic answers.
It may be years before we have a complete understanding of what caused crime to rise in New York over the last two years, but researchers have begun to point to some potential national factors.
Gun violence appears to have significantly contributed to the increase in murders, for one. Guns were sold, carried, and recovered at crime scenes at much higher rates than previous years. The pandemic also caused a sudden, sharp, and highly unequal recession — thrusting many people and communities into deep uncertainty. Social distancing and disruptive lockdowns severely hindered the reach of institutions that help preserve neighborhood safety.
Of course, researchers and policymakers can and should continue to study the effects of bail reform on public safety, as more data and methods of analysis emerge. Many factors can influence a pretrial release decision, making it hard to fully understand the impact of bail reform with just two years’ worth of data. Other implementation issues, like limited funding available to pretrial supervision agencies, further complicate the relationship between reform and crime.
Critically though, so far there is no evidence that bail reform has driven the increase in crime. That makes the case for further revisions to the bail statute significantly weaker and indicates that policymakers should instead look for other ways to address crime. Indeed, other policy interventions that support communities, rather than relying on incarceration, have the potential to build enduring public safety in the city and state.
For example, better funding for pretrial services, even beyond what Hochul proposed in her executive budget, could ensure that people awaiting trial in their communities receive help they may need. Further, expanded mental health treatment services could identify and help people in crisis, as could addiction and substance abuse treatment. Other interventions, like after-school programming and summer youth employment, may provide safe places for young people and reduce opportunities for conflict. Programs to expand affordable housing could reduce strain on the city’s overburdened shelters for unhoused people, and improve quality of life, health, and safety at a stroke. Funding and support for community violence interrupters, a promising strategy that the Biden administration has embraced at the federal level, could also lead to safer neighborhoods. These approaches grab fewer headlines than bail reform, but legislators should focus on investments, like these, that are proven to address crime.