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Analysis

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.

jail key
Charles O'Rear/Getty

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.