On Jan. 1, 2020 bail reform was enacted in New York requiring that persons charged with low-level offenses be released at their arraignment instead of having to post bail. Some in our community, blaming this law for a recent increase in some violent crimes, have called for rolling back bail reform. However, there is no evidence that bail reform is responsible for a perceived increase in crime, and rolling back bail reform would have serious, deleterious impacts on our community.
Lost in the current debate about bail reform is what led to these historic changes and why the reforms must not be rescinded: the high rates of pretrial incarceration of people who are legally presumed innocent, and the damage caused to them and society as a result.
Prior to bail reform, too many people were held in pretrial detention for minor offenses because they could not afford to post bail to regain their freedom. In Monroe County, from 2010 to 2014, more than 20,000 people spent one or more days in custody on bail that was $2,500 or less, the significant majority of them having been accused of misdemeanors or non-violent offenses.
The harms of pretrial detention are indisputable. In addition to risking the loss of their jobs, homes, or even custody of their children, numerous studies have established those held in pretrial detention receive harsher punishments and are much more likely to be convicted, taking all other relevant factors into account, than those who can buy their freedom. Studies have also established that pretrial detention has a deleterious effect on long-term employment, as it contributes to the likelihood of a criminal conviction.
The harms fall disproportionally on the poor and communities of color. Compared with white men charged with the same crime and with the same criminal histories, African American men receive bail amounts 35 percent higher; for Hispanic men, bail is 19 percent higher. Research shows Black and Latino people are more likely to be detained than white people with similar charges and histories. Research has shown that African Americans face higher bail amounts, and are more likely to be held in jail pretrial.
Bail reform has been a huge success. Statewide, pretrial detention has decreased 35 percent. Right now, 5,000 New York citizens are free instead of being incarcerated awaiting trial thanks to bail reform. Instead of celebrating this, some in our community have engaged in a concerted effort to roll back reform, arguing that there has been an increase in violent crime, and bail reform is the cause. But the reality is much more nuanced.
Unfortunately, there has been an increase in some violent crime. Murders and aggravated assaults are up in our community. But murders have increased in nearly every major city in the United States. A recent study by the Center for Public Safety Initiatives at the Rochester Institute of Technology examined 24 major U.S. cities, comparing 2020 to 2019 homicide rates. Twenty-three cities saw an increase in the homicide rate. Similarly, the Council on Criminal Justice studied 28 U.S. cities and determined that the homicide rate increased an average of 42 percent over the summer of 2020 compared to 2019. The study also found that aggravated assaults rose by an average 15 percent in those cities.
Did New York’s bail reform cause homicides and aggravated assaults to increase in Pittsburgh, or Los Angeles, or Chicago, and all other major U.S. cities? Or is it more likely that the same socioeconomic factors that led to an increase in homicides and assaults in those cities led to the same increase in New York cities? The answer is obvious.
According to the RPD Data Portal, larcenies in Rochester decreased 10 percent in 2020 compared to 2019. Did bail reform cause that decrease? Or is it more likely that the same socioeconomic factors that led to a decrease in larcenies nationwide, also led to the decrease in our community? Again, the answer is obvious.
The argument that violent crimes are up in our community because of bail reform strains credulity. The crimes that have increased in Rochester have increased in nearly every city in the country. The more plausible explanation is that the COVID-19 pandemic and its impact in increasing poverty and other detrimental socioeconomic factors is driving the increase in some violent crimes here and in all other U.S. cities.
With the public comments made by some, the average person would believe that all crime was up—but it is not. Some violent crime has increased, but most crime decreased in 2020 compared to 2019. For example, the New York City Police Department in early January issued a report on 2020 crime, noting that although there was an increase in some violent crime last year, overall crime in New York City reached record low.
When considering the impact of bail reform, think about the 5,000 people who, at this moment, are not suffering in jail awaiting trial. Do not let misinformation return us to a system where thousands of New York citizens were detained pretrial on minor crimes. We should be proud of the reforms and their success in ending an unfair process that incarcerated people because they were poor.
Timothy Donaher is the Monroe County public defender.