No, New York’s Bail Reform Has Not Made Us Safer

The term “bail reform” has become synonymous with the Left’s broader criminal justice agenda. In New York, that agenda was instantiated in a specific policy initiative passed by New York State Democrats in 2019 and revised in 2020 and 2022 that took cash bail off the table for most criminal offenses. The Data Collaborative for Justice at the City University of New York’s John Jay College recently released its third empirical analysis of the reform’s effects—and its analysis resonates with what bail-reform critics have been saying all along.

Whether in New York or Chicago, bail-reform studies have become Rorschach tests for those still debating the use of cash bail in pretrial release. Defenders of New York’s bail-reform laws will undoubtedly tout the study’s findings showing it reduced recidivism in New York City. Narrowly speaking, this is true. But it leaves out key details. For example, the same study failed to detect any effect on recidivism in the rest of the state.

When you dig deeper, the main takeaway of the study (as with the two before it) is clear: it was a bad idea, as I and other critics warned, to restrict bail while prohibiting judges from detaining dangerous pretrial defendants based on public safety risk.

How can that be? Doesn’t the study show that recidivism in New York City declined? But this effect, it turns out, was driven mostly by the reform’s impact on low-risk defendants—those with nonexistent or minimal criminal histories. Few want such people locked up, anyway. Repealing the laws restricting pretrial detention and giving judges the power to detain dangerous defendants would have little, if any, effect on low-risk defendants.

Many critics of New York’s bail reform have also recognized the inefficiencies and inequities of a system too heavily reliant on cash bail. I’ve argued that the pretrial release inquiry should revolve around questions of a defendant’s risk rather than his access to wealth. But we can’t ignore the study’s most important finding: when it came to high-risk defendants, “the reduced use of bail was consistently associated with worse outcomes.” That includes higher rearrest rates both in general and for violent felonies in particular.

In other words: bail reform has released more high-risk defendants onto the street, where they have gone on to commit more crimes than they otherwise would have been able to if a judge had been permitted to consider their criminal histories.

The basic questions of bail reform do not concern whether low-risk defendants should be released; most would agree that they should. Rather, the questions are: Should New York join every other state in the union in allowing judges to consider the risk a defendant poses to public safety when weighing pretrial release? And has New York’s bail reform facilitated the commission of crimes that wouldn’t have otherwise been committed under a different pretrial release policy?

Each of the three studies of New York State’s bail reform published by the Data Collaborative for Justice has produced evidence suggesting that the answer to both questions is “yes.”

The Collaborative’s March 2023 study found, for example, that “the mandatory release provisions and, to a lesser extent, provisions leading to the reduced use of bail in cases still eligible for it . . . increased recidivism for people with substantial recent criminal histories.”

The authors of its October 2023 study wrote that “when the analysis was narrowed to ‘high-risk’ individuals with a pending criminal case, we found an increase approaching statistical significance in violent felony recidivism within two years, and a statistically significant increase in pretrial violent felony recidivism.”

The findings of this most recent analysis point in the same direction, and they leave us with another question: Will the politicians in Albany considering changes to bail policy be guided by evidence—or ideology?

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