The Facts on Bail Reform and Crime Rates in New York State

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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.