This weekend’s read is a report from the Brennan Center for Justice at New York University. The researchers delve into the controversy over whether bail reform has led to increasing crime rates. They identified 33 U.S. cities that have implemented various forms of bail reform — mostly between 2017 and 2021, though Washington, D.C., did so in 1992 and Louisville, Kentucky, did in 2011. Washington State has been looking at bail reform for several years — since as far back as 2010.
Imposing cash bail on people accused of crimes to secure their release while awaiting trial, a practice that has become almost universal in the U.S. criminal justice system, has come under heavy scrutiny nationwide and particularly in the past 10 years. In practice, it has allowed wealthier people to avoid sitting in jail while poorer people who can’t afford it are held for months or years. As the Brennan Center researchers point out, this undermines the principle of “innocent until proven guilty.” Prosecutors have broad discretion in asking for bail, and judges equally have discretion in granting it, but in practice, who gets offered release on bail, and how much it costs them, can be heavily impacted by discriminatory practices in the criminal justice system. This recognition is what has led many cities to reform their bail practices.
The time frame when bail reform was implemented is important, because during the first year of the COVID-19 pandemic (early 2020 to early 2021), many parts of the United States saw increases in violent and property crime. Opponents of bail reform have recently seized on this and argued that bail reform was the primary reason for the increase. Of course, we know that just because two things happen at the same time doesn’t mean one caused the other; put another way, “correlation does not imply causation.” But it’s just as difficult to prove that bail reform didn’t cause the rise in crime as it is to prove that it did; it requires either a lot of relevant data, or a solid “counterfactual,” a way to measure whether crime would have risen in 2020 had bail reform not occurred.
Since they can’t change history, social scientists have invented a few other methods for trying to create a meaningful counterfactual. A common method is called a “difference in difference.” As a point of comparison to the 33 cities where bail reform occurred, they assemble a set of similar cities that did not enact bail reform — ideally, the two sets of cities are nearly identical in every dimension except for bail reform, so we know that any divergence we see in the crime rates must therefore be caused by bail reform.
The Brennan Center researchers assembled such a difference in difference, and then they compared the outcomes. And they found that crime rates followed the same trend lines in both the lead-up to 2020 and the following two years: Bail reform made no difference to crime rates.
Then, they moved on to what happened to crime rates in the bail-reform cities just before and after bail reform was enacted, to see whether the policy change itself had an impact. This is a bit trickier to analyze, since each of the cities implemented it at different times. But they found that in the months immediately before and after implementing the change to bail practices, there was almost no difference in crime trends between bail-reform and no-bail-reform cities.
Bail decisions (and thus bail reforms) are made by three different stakeholders: legislators, who decide how much discretion judges have; judges, who decide how to use that discretion when they set bail; and prosecutors, who decide whether to ask for bail, and if so, how much to ask for. The researchers broke out cities based upon which of these stakeholders implemented the enacted reforms. Again, they found that there were no statistically significant differences compared with no-bail-reform cities in any of these three groups.
Finally, they factored out the COVID-19 pandemic by only looking at cities that enacted bail reform before March 2020. Same result: The crime trends were not statistically different from no-bail-reform cities.
The report thoroughly and completely debunks the notion that bail reform causes a rise in crime. As for why crime rose at the beginning of the COVID-19 pandemic, the researchers point to other studies that suggest alternative explanations. Those include the social disruption the pandemic caused and its effects on mental health; the increase in the number of people buying, carrying, and using firearms; and government budget cutbacks that hit programs that promote safety.
It’s naïve to assume this study alone will stop advocates from claiming bail reform is tied to a rise in crime. But at least we have some hard data, cut several ways, that consistently shows it is not.