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Consider All Data — and Coronavirus — Before Changing New York’s New Bail Law

Now is not the time to increase the flow of people into the state’s jails.

Before New York’s bail reform law was two weeks old, some were call­ing for its repeal. This legis­la­tion reduces the number of New York­ers sent to jail before trial only because they can’t afford bail. While it appears to be achiev­ing that goal, the law should stand long enough for a respons­ible and accur­ate assess­ment of its consequences. The coronavirus has added another reason to let the reform be for right now — we should­n’t increase the flow of people going into our state’s jails.

“The way jails and pris­ons are designed and admin­istered promotes the spread of commu­nic­able disease.” That’s how the former chief medical officer at New York City Correc­tional Health Services described the special threat coronavirus poses to incar­cer­ated people and the staff in jails and pris­ons. In an inter­view with the Bren­nan Center, Dr. Homer Venters explained that state health agen­cies have almost no pres­ence behind bars, which makes coordin­at­ing test­ing and treat­ment diffi­cult. He saw this firsthand on Rikers Island during the H1N1 outbreak in 2009. In short, our correc­tional facil­it­ies aren’t ready for the coronavirus.

Before the pandemic, oppon­ents of bail reform pre-judged the law, claim­ing it jeop­ard­ized public safety. They seized on new data on arrests involving people recently released on bail. But those stat­ist­ics are only part of the picture. Bail reform in New York is less than three months old. Over the same time period, New York City has seen fewer murders and rapes. Some other offenses, such as assault and grand larceny, are indeed on the rise (around 10 percent each).

What can we conclude about the effect of bail reform on crime? Simply put, it’s too soon to tell. Major crim­inal justice policy changes take time to work — and crime data rarely tells a simple story.

Bail reform’s oppon­ents point to rearrests involving people who were, they say, released because of the new law. But to what should we compare those figures? How many people released under the law have gone on to make every court date and not been rearres­ted? How many of these arrests will ulti­mately end in dismissal or acquit­tal? Based on the NYPD’s CompStat portal, it seems unlikely that these arrests completely explain 2020’s crime increase. Some­thing else could be caus­ing it. Indeed, New York City began seeing an increase in some crime types (includ­ing robbery) last year, a trend we noted in Decem­ber.

Vari­ations in crime trends are relat­ively common, and may be partly to blame. In 2015, New York City’s murder rate rose 5 percent but then decreased by 5 percent the follow­ing year. Crime rises and falls for many reas­ons, often wholly unre­lated to new policies.

Pinning any increase in crime on a single cause ignores the complex­ity of crime. The Bren­nan Center spent years study­ing why crime fell precip­it­ously after 1990, conclud­ing that vari­ous socioeco­nomic factors likely played a role. Accord­ing to our find­ings, the aging popu­la­tion, changes in income, and decreased alco­hol consump­tion partially explained the “great crime decline.”

We must also remem­ber that any increases in crime occur against a back­ground of histor­ic­ally low crime rates. The most recent FBI crime data shows that in 2018 the national crime rate was less than half of what it was in 1990. In New York State, crime was 70 percent below its level in 1990. And New York City’s crime decline is espe­cially dramatic: its crime rate was nearly 80 percent lower than what it was in 1990.

Our bail system has needed an over­haul for decades. Before the new reform took effect this year, our system punished poor people with jail time because they could­n’t afford to pay for free­dom, dispro­por­tion­ately affect­ing people of color. It did little to protect public safety — or health. Jailed defend­ants are quicker to plead guilty — even to crimes they did not commit — after exper­i­en­cing appalling condi­tions behind bars, far from their jobs and their famil­ies.

New York had to bring this injustice to an end, yet it took years to do so. We can’t toss this reform aside after a few months. We must wait for more data to develop and give our poli­cy­makers the time and facts neces­sary to judge the new law. Change may ulti­mately be neces­sary. But the added risk of coronavirus expos­ure means we must proceed with extreme caution.