The facts on bail: What new state data does and doesn’t say
New York State’s Division of Criminal Justice Services has just released a raft of new data on rearrest rates for people arraigned and released both before and after bail reforms took effect. Those who support the new law, which makes many crimes ineligible for pretrial detention, say they prove the reforms are working; those who say the new statute is driving the city’s overall crime increase (even as murders and shootings are trending down) say they prove the opposite.
Guess what? They’re both wrong.
The updated information shows how often individuals arrested beginning at the start of 2019 wound up being arrested again. It’s the clearest picture yet of the impact of bail reform — because the law took effect at the start of 2020. Previously, no one could compare recidivism in advance of and subsequent to the reforms in an apples-to-apples fashion.
The bad news for those who tout bail reform as an unqualified success is that, as Charles Fain Lehman wrote in City Journal, statewide monthly rearrest rates started rising sharply starting in late 2019, when judges began applying the new law early to avoid complications in in-progress cases. Up and up the rate went, peaking in April 2020. (The trends predate the pandemic but were likely aggravated by it.) Further establishing the linkage, rearrest rates went down after a round of legislative changes made more crimes bail-eligible. Still, they’ve stayed stubbornly above the pre-bail-reform average.
But critics of bail reform — and we count ourselves among them, because we think New York ought to let judges factor in not only on an individual’s likelihood of returning to trial but the risk he presents to the community — must acknowledge something, too.
As even the right-of-center City Journal analyst admits, comparing the standard indicator of reoffense rates showed “almost no effect in New York City”: Recidivism within 180 days of arrest here rose a bit in 2020 but then went right back down to 2019 levels in the first nine months of 2021. Why? Probably because, unlike elsewhere in the state, New York City’s prosecutors and judges had already been employing more liberal release practices. (Notably, they did so over many years during which crime also declined.)
There’s a caveat: The indicator used by DCJS captures rearrests within 180 days, which makes some sense because it doesn’t skew the numbers if an arrest happened longer ago, or if it took extra time for cases to be resolved, as they did during COVID. Another way to gauge recidivism is whether an individual wound up rearrested even after a half-year passed. By that measure, the rate rose in the city between 2019 and 2020.
In short, the picture is complex — an inconvenient truth for both shouting sides of the state’s most fraught criminal justice debate.
