Did bail reform really cause a crime wave?

New York state’s sweeping new bail reform law is under attack by the police, conservative media outlets, some district attorneys, Republicans and even some Democrats. Bail reform eliminated cash bail for a wide range of offenses and forced judges to impose the least restrictive kind of pretrial supervision that is likely to ensure a defendant will come back to court. Nearly 91% of new defendants will remain free under bail reform, up from 76% under the old laws, according to researchers at the John Jay College of Criminal Justice. An additional 20,000 cases would have resulted in pretrial release without bail in 2018 if the new law had been in effect.

Opponents of bail reform claim that letting those defendants out before their trial has unleashed a crime wave from repeat offenders. New York City Police Department Commissioner Dermot Shea denounced bail reform as a threat to public safety in an op-ed for The New York Times in late January. In early February, New York City’s largest police union declared a “public safety emergency,” ostensibly in response to the rising crime rate, which its president linked, in part, to bail reform.

The NYPD’s commanding officer of the 108th Precinct in Queens, Deputy Inspector Michael Gibbs, may have defied the rules against police officials lobbying when he urged citizens at a public meeting in Elmhurst to contact their representatives and complain about bail reform. Gibbs reportedly vowed to continue making similar statements, even after a council member’s senior staffer warned him that his behavior was inappropriate. State Republican Party Chairman Nick Langworthy called the reforms “an assault on civilized society, public safety and law enforcement, and on criminal victims and the people and the taxpayers of the state of New York.”

But are they right? The answer should be determined by looking at actual data over a long enough period to make meaningful comparisons, not a few cases highlighted by the New York Post. Individual anecdotes about people who allegedly committed crimes after being released without bail are not necessarily illuminating in a city of more than 8 million people – especially considering that they could have been released under the old rules if they had enough money.

The most compelling argument bail reform foes may have is that New York City’s crime rate jumped 16.9% in January, compared to January 2019. That’s a startling increase, larger than typical fluctuations in the city’s crime rate.

However, it’s unclear if bail reform caused the increase. And there’s evidence to suggest bail reform could reduce recidivism over the long haul.

Bail reform officially went into effect on Jan. 1, as part of a reform package that included discovery reform and other changes, but judges started following the new bail guidelines in November 2019 to avoid a glut of people being released at once. If bail reform caused the rising crime rate, you would have expected the crime rate to start rising soon after judges started applying the new guidelines. But November’s crime rate was down 1.3% compared to the previous November. Moreover, the NYPD hailed December 2019 as the month with the “lowest number of index crimes in the modern era,” with the crime rate down 0.9% over the previous December.

“No correlation could be or should be made to reforms that have been in place for only one month.” – New York Civil Liberties Union

The NYPD’s chief statistician, Chief Michael LiPetri, didn’t even mention bail reform in his analysis of January’s rise in robberies, assaults, shootings and car thefts. According to LiPetri, the jump in robberies was caused not by hardened serial criminals reoffending while already facing charges, but by teenagers stealing each other’s gadgets. And while property crimes went up, the number of rapes and murders were both down from January 2019. LiPetri also remarked that people who had recently been released from prison on parole or probation – not pretrial defendants out on bail – accounted for an outsized share of January’s shootings.

Nor is the general trend toward locking up fewer of the accused brand new. The use of both pretrial detention and cash bail has been declining in New York City for many years, and crime continued to fall during that time. “For the past two decades, New York City has reduced both its jail population and the use of cash bail, resulting in some of the lowest crime rates we have ever seen,” the New York Civil Liberties Union said in a statement. “No correlation could be or should be made to reforms that have been in place for only one month.”

Other states, including New Jersey, have implemented bail reform without seeing a rise in crime. California completely abolished cash bail, and its crime rates remain at historic lows.

It’s possible the sudden jump in crime is more a question of how crimes are being classified than what’s actually happening. The research of John Eterno, a professor of criminal justice and director of graduate studies at Molloy College on Long Island – and a former NYPD captain – has shown that data manipulation has become an increasing problem in the era of CompStat, a performance management system in which precinct commanders are grilled by the highest officers in the police department about crime data from their precinct.

If commanders want to keep the numbers down, they have some ability to do so through tactics like recanvassing victims and witnesses, or downgrading crimes so that they fall out of the seven major categories of crime that count toward the crime rate – for example, by coding stolen property as lost. Finally, and most difficult to detect, officers can refuse to take complaints from victims. “So how do you fake a crime decrease? It’s pretty simple. Don’t file reports, misclassify crimes from felonies to misdemeanors, undervalue the property lost to crime so it’s not a felony, and report a series of crimes as a single event,” wrote Robert Zink, then-recording secretary of the Patrolmen’s Benevolent Association, now known as the Police Benevolent Association, in the union’s magazine in 2004.

New York City’s major police unions have been vocal about the routine pressure that front-line officers face from their superiors for over a decade. When 19 police officers were caught downgrading crimes in the Bronx in 2015, the president of the police union defended the officers saying that NYPD “management has consistently hammered police officers to reduce felonies to misdemeanors” as “an artificial way of keeping felonies down with fewer officers on the street, a problem that we still experience today.”

“How do you fake a crime decrease? It’s pretty simple. Don’t file reports, misclassify crimes, under-value the property lost so it’s not a felony, and report a series of crimes as a single event.” – Robert Zink, then-PBA recording secretary

An internal NYPD report obtained by Reuters in 2012 acknowledged a “concerted effort to deliberately underreport crime in the 81st Precinct” in Brooklyn and admitted that the overall pattern of misclassifications pointed to a bid to manipulate the index crime rate.

In 2018, a police captain claimed to have evidence of 156 cases of downgrading over the past two years across multiple precincts, allegedly including incidents where deliberately shooting at a person and missing was downgraded to “investigate shots fired” or “criminal mischief.”

Normally, police want crime stats to look as low as possible, because it makes it seem like they’re doing a better job. But if police usually hold down the crime rate, like someone with their thumb over a hose, Eterno thinks it is possible they could suddenly let the numbers surge upward to make a point. “Commanders and others can get the wink and the nod that, you know, we’re kind of looking for these numbers to go up a bit, so we’re going to let them go up,” he said.

In 2013, one officer told the NYPD’s Crime Reporting Review Committee, which evaluated the NYPD’s mechanisms for auditing its crime stats, that officers sometimes also face pressure to manipulate stats upward under certain circumstances.

Regardless of the stats’ validity, Eterno thinks there are real problems with bail reform that need to be addressed. Like many law enforcement veterans, he worries that the new law might put dangerous people on the street where they can reoffend. He noted that there were a large number of outstanding warrants in New York City even before bail reform, and he worries that the new law will only add to the backlog of people who don’t show up for court.

Normally, police want crime stats to look as low as possible. But if police usually hold down the crime rate, it is possible they could let the numbers surge up to make a point.

Asked whether the NYPD might be manipulating crime statistics for political reasons, NYPD spokeswoman Devora Kaye replied to City & State in an email: “This is simply false. The CompStat system has been in place since 1994 and each number reflects crime victim complaints that the men and women of the NYPD relentlessly investigate.” She added, “The integrity of the reporting system is a staple of the NYPD and there are numerous levels of checks and balances, audits, and robust oversight to ensure the proper classification of crime reports.”

Eterno is not alone, however, in thinking statistical manipulation may occur. “Not for murders or shootings, but assaults, thefts and criminal mischief, there is considerable scope for at least some manipulation,” Eugene O’Donnell, a professor of law and police studies at the John Jay College of Criminal Justice and a former NYPD officer and prosecutor, told City & State. “There’s no doubt in the world it happens. The only questions are the degree in extent that it happens.”

O’Donnell and Eterno agree that the NYPD’s crime statistics are vulnerable as long as the department is allowed to audit itself. O’Donnell argued that it’s ridiculous to expect an internal auditing process to get rigorous results when it’s conducted by lower-ranking officers. “In a quasi-military organization, (a zealous investigator) would be crushed like a bug,” he said.

Still, like many in the criminal justice community, Eterno and O’Donnell both feel that there wasn’t enough consultation in the runup to the criminal justice reform package. O’Donnell said legislators in Albany have only themselves to blame for the backlash to bail reform. “They excluded the public from that process, so that’s their fault,” he said. “It was done secretively.”

Other experts said that at least part of the recent crime spike represents real crimes that wouldn’t have happened without bail reform – but that’s not the final word on public safety. Michael Rempel, director of jail reform at the Center for Court Innovation, an organization that conducts original research and designs evidence-based programs to improve the functioning of the justice system, explained that a certain amount of extra crime is inevitable when you decrease pretrial detention dramatically as bail reform has done. “Obviously if people are detained, they’re incapacitated,” he said. “They’re not in the community. So there’s no way around the reality that detaining people, by definition, reduces their likelihood of recidivism as long as they are detained.”

However, Rempel stressed, this is only part of the public safety equation because most people who are detained pretrial do not immediately go on to serve a lengthy term in state prison. If they’re ultimately found guilty, they’re more likely to be sentenced to probation or a short prison stay. Then those people get sent back out into the community. So, eventually, they’ll be back on the streets anyway – and probably not that long from now.

Then the question becomes whether their experience in the criminal justice system makes them more or less likely to offend again. There is a lot of research that suggests that pretrial detention increases recidivism over the long run. The reasons probably have to do with the negative effects of incarceration on people’s jobs, homes, families and health, not to mention the criminogenic influences a person is exposed to behind bars.

Rempel pointed to studies of New York City, Philadelphia, Pittsburgh, Miami, the Houston area, and the state of Kentucky that show that pretrial detention increases the likelihood of recidivism.

However, these declines in overall recidivism are only evident over several months or even years, whereas the extra crimes from people not being in pretrial detention show up right away. Therefore, looking at the crime rate one month out is not a meaningful reflection of bail reform’s effect on public safety because it’s only counting the immediate uptick and not the long-term decreases in recidivism we can expect based on the research.

Khalil Cumberbatch, the chief strategist of New Yorkers United for Justice, a leading advocacy group in the fight for bail reform, argued that reforming the bail system has positive dividends for the entire community and that those benefits need to be considered too.

Even a few days in jail can upend a person’s life. A jail stint can cost a person their job, their home, custody of their children and more, to say nothing of the physical and mental toll of incarceration.

The minority of people who might commit additional crimes must be weighed against the majority of defendants who are able to hold their lives and families together instead of languishing in pretrial detention – including those defendants who may be innocent and could otherwise have been locked for months for a crime for which they will never be convicted. “We have heard from defenders that they are seeing many, many more cases of the positive aspects of reform,” Cumberbatch said.

It is impossible to know if bail reform contributed to the spike in January’s crime rate. Experts said it will take carefully designed studies over the course of several years to find out what effect, if any, bail reform has on crime. What we already know for certain is that the number of people in pretrial detention has plummeted and the rich can no longer buy their freedom while the poor languish in jail.

Everyone in pretrial detention is still legally innocent, as they have not yet been tried, let alone found guilty beyond a reasonable doubt. When we take stock of a few crimes that some defendants have committed while on bail, we have to balance that against the many firings avoided, evictions prevented and families preserved.