Crime is becoming a major election issue, and one of the central points of debate is the question of bail: which suspects should be jailed before trial and which should be released on bail – and for what amount?
Some conservatives argue that generous bail policies allow suspects who are more likely to commit crimes before their upcoming court hearings or avoid bail altogether to be released. However, some progressives say research does not support this claim. They argue that it is unfair to hold defendants because they cannot afford bail, pointing out that such defendants are disproportionately black, Latino, and low-income.
Illinois, New Jersey and New Mexico have moved away from the employ of money bonds. However, other states such as Georgia and New York are going in the opposite direction and introducing stricter rules. Tennessee is in view of a constitutional amendment that would give judges more discretion in denying bail amid concerns about rising crime rates.
Politicians on both sides often link bail policies to crime rates, but experts say this is problematic because much of the crime data used by states and cities is unreliable.
In reality, experts say, most crime data is too unreliable to pinpoint specific policies as the sole cause of rising or falling crime rates. The bail system is also often misunderstood as a form of punishment rather than a process for releasing people under certain conditions before trial.
“There is no evidence of a correlation or connection between the increase in pretrial releases and the crime rate,” said Spurgeon Kennedy, vice president of the Crime and Justice Institute, a nonprofit criminal justice research organization. Kennedy previously served as president of the National Association of Pretrial Services Agencies.
These misconceptions about crime can put voters at risk of misinformation in the run-up to local and national elections.
“If you ask a regular citizen, ‘Do you think crime has gone up or down in the last year?’ they’ll tell you, ‘Oh, it’s gone up. It’s gone up significantly.’ But we’ve seen an overall decline in crime and also in violent crime,” Kennedy said. “So the facts don’t support the argument, and that’s unfortunate because it makes it a lot easier to use this as a political football.”
Both chambers of the Georgian legislature a law passed This month, 30 more felonies and misdemeanors would be added to the list of crimes subject to bail restrictions, meaning defendants in those offenses must post cash bail. They include charges of unlawful assembly, organized crime, domestic terrorism and marijuana possession.
The bill would also prohibit individuals or organizations from posting bail more than three times per year unless they establish themselves as bail bond companies, which would severely limit the number of nonprofit bail bonds funds. The bill is now on the desk of Republican Gov. Brian Kemp.
There is no evidence that there is any connection or link of any kind between the increasing number of pre-trial releases and the increasing crime rate.
– Spurgeon Kennedy, vice president of the Crime and Justice Institute
Some criminal justice advocates say the bill, if passed, would clash with changes proposed by a Law of 2018 to the state’s legal system for people accused of crimes. This law, which championed by former Republican Governor Nathan Deal, requires judges to consider the defendant’s financial circumstances when setting bail.
Supporters of the fresh bill, first introduced last year, argue that the measure is necessary to prevent crime, support crime victims and hold repeat offenders accountable. Senator Randy Robertson, who introduced the bill, said it focuses on people accused of violent crimes.
“We’re focused on getting the nonviolent people back to work and their families,” Robertson said in an interview. The Republican argued that the bill would also lead to a “dramatic decline” in the state’s prison population because it would provide an opportunity for organizations such as churches and nonprofits to set up as bail bonds agencies.
These organizations would have to meet the same legal requirements as bail bonds companies, including a background check, payment of fees and approval of the application by the local sheriff’s department.
However, some opponents argue that it would lead to prison overcrowding and disproportionately harm low-income and black and Hispanic communities. The ACLU of Georgia has threatened with legal action the state if the bill comes into force on the grounds that it is unconstitutional.
Robertson said some of the criticisms raised were “rehashings” of complaints he has been hearing for 25 or 30 years.
“There is no evidence, no independent research, that shows that setting low bail and allowing judges to set bail at will results in a disproportionate number of people being held in our prisons,” Robertson said. “I don’t believe that [this bill] affects the third rail of constitutionality.”
Data and research before the process
However, several research studies suggest that setting cash bail does not aid ensure court appearances or improve public safety.
Pretrial detention experts say even a few days or weeks in prison can cost people their homes or jobs or damage their personal relationships, says Matt Alsdorf, deputy director of the Center for Effective Public Policy and co-director of the group’s Advancing Pretrial Policy and Research project.
“The use of unnecessary detention has negative effects, even if you look at it only from a public safety or crime prevention perspective,” he said.
Recidivism in court has long been the subject of investigation by criminal justice experts: A 2013 study Study of more than 150,000 people who were incarcerated in Kentucky found that longer periods of detention increased the likelihood of re-arrest both during pretrial detention and within the first two years after the conclusion of the case. The study also found that people detained for two or three days were 9% more likely to fail to appear in court than people detained for only one day.
Over and beyond Study published in the journal Criminology & Public Policy Last year, black defendants were 34% more likely than white defendants to be recommended to remain behind bars until their cases were resolved.
“The bail system is a very regressive system that ultimately serves to lock up populations that are generally already disadvantaged,” Alsdorf said.
In places where bail practices have been relaxed, studies show that the number of inmates in custody tends to fall after the changes. In some jurisdictions, there are also fewer arrests for certain types of crimes.
In Houston, a lawsuit claiming that Harris County’s misdemeanor bail practices were unconstitutional resulted in a settlement and Approval decision in 2019. The county is required to release most people charged with misdemeanors on bail, meaning defendants simply promise to appear at their next court date.
In the latest independent monitoring report Observers wrote in their statement on the system starting in 2023 that the changes have “saved Harris County and its residents many millions of dollars and improved the lives of tens of thousands of people” and have resulted in “no increase in the number of new cases of people arrested for minor offenses.”
Brandon Garrett, the lead monitor and a professor at Duke University School of Law, said in an interview that racial disparities “disappeared overnight” after bail practices were relaxed. The monitors also noted an overall decline in misdemeanor arrests of about 8% between 2019 and 2022.
“There were real concerns about racial disparities in the old bail system, and it was quite remarkable how quickly those disparities – in terms of who ended up in jail and who didn’t – disappeared,” Garrett said.
“Intentionally and consciously”
In 2017, New Jersey moved away from cash bail and instead adopted the Public Safety Assessment, an algorithm that uses nine factors from a person’s criminal history to predict the likelihood that they will appear for subsequent court hearings and not commit crimes while on parole.
The changes led to more “deliberate and deliberate” detention hearings, recalled now-retired Judge Martin Cronin, who was on the committee that unanimously recommended switching to a more risk-based bail system.
Cronin, now a consultant with Pretrial Justice Solutions, LLC, said the state’s fresh system offers more accountability and transparency.
“You’re focused on what are the permissible grounds for detention and how the record relates to that, individually to the defendant sitting before you,” Cronin told Stateline. “There’s real accountability there. … It’s a fundamentally different process.”
Between 2015 and 2023, the number of pretrial detainees in New Jersey fell by 27.2%, according to state justice statistics. Report on statistics on criminal justice reform last year.
