Bail reformers are facing backlash. Here’s what the facts say | Thursday Morning Coffee

Rising crime rates are fueling anti-reform arguments. But the data are unclear

April 7, 2022 7:19 am

Good Thursday Morning, Fellow Seekers.

Rising crime rates nationwide, including here in Pennsylvania, are helping to fuel arguments that reforming cash bail, which is widely recognized as needlessly punitive, will just make a bad problem worse.

In New York, Gov. Kathy Hochul, a Democrat, is “privately pushing” lawmakers to revisit the Empire State’s bail reform law in response to a spike in gun violence during the pandemic, the New York Times reported last month.

But according to a new analysis by The Appeal, there’s currently not enough evidence to support a solid conclusion one way or another, and arguments that bail reforms are helping to fuel rising crime rates mostly amount to demagoguing.

And “focusing on spurious claims about bail reform and crime rates, however, ignores the proven harms of jailing nearly 5 million people each year before any determination of guilt,” the analysis reads.

And here in Pennsylvania, meanwhile, where reformers have spent years pushing for change, there’s some pretty compelling evidence showing that punitive cash bail does more harm than good.

(Image via The Appeal)

With reform laws scattered across states and with no hard-and-fast rules for data collection, The Appeal notes that most reform studies have focused on results tied to specific laws, such as the percentage of people who are rearrested while they’re on pretrial release.

But “most research has found that reducing the use of cash bail had little to no effect on the percentage of people who are rearrested while on pretrial release. Some studies have found that jailing people before trial may even increase their likelihood of rearrest in the future,” according to The Appeal.

The Appeal’s analysis acknowledged the arguments of critics who have pointed out that, with more people winning release before trial, crime could increase even if pretrial arrest rates remained unchanged.

“For instance, one study in Cook County found that the number of people on pretrial release rearrested for new crimes rose by 12 percent during the first 15 months of bail reform, even though the percentage who were rearrested decreased slightly,” according to The Appeal.

However, that argument “ignores the fact that the vast majority of crimes are not committed by people on pretrial release,” The Appeal’s analysis continued.

“The Cook County study looking at the first 15 months of bail reform documented about 4,000 arrests of people on pretrial release—just over 4 percent of the nearly 90,000 total arrests the Chicago Police Department reported making in that period,” The Appeal concluded. “Data from other jurisdictions shows a similar trend: A report last month by the New York City Comptroller found that only 5 percent of people arrested were on pretrial release.”

(Image via The Philadelphia Gay News)

What also is abundantly clear is the wildly uneven imposition of cash bail, and the economically disastrous effect it can have on the accused and their families.

report released earlier this year by the American Civil Liberties Union of Pennsylvania took an in-depth look at the use of cash bail in the Keystone State, finding that local magisterial district justices “routinely” set bail that people can’t afford, triggering a “cascade of harmful consequences,” that includes increasing the possibility of someone’s future arrest.

Among its top findings:

  • “Cash bail was the most common type of bail set across Pennsylvania, and set nearly twice as often as release on recognizance (ROR), the least restrictive type of bail.” And of the people assigned cash bail, “more than half … did not post it and remained incarcerated.
  • “Some counties rarely assign release on recognizance,” and “bail practices varied widely even among the magisterial district justices who serve in the same county,” and
  • “[Magisterial district justices impose cash bail more frequently and in higher amounts for Black people].”
Cash bail rates, by county (Source: ACLU-PA).

The ACLU’s report found that cash bail amounts varied wildly across the state. Armstrong County had the lowest average amount at $15,099, while Bucks County had the highest average, at $77,462. One magisterial district justice [MDJ] in the suburban Philadelphia County had the highest average amount of all, clocking in at more than $600,000, the report found.

Statewide, the average was $38,433, which is more than half the average household income in the state, researchers found. As a result of those punitively high amounts, “in the two-year period between 2016 and 2017, more than 97,000 cases occurred in which the defendant remained incarcerated until trial,” the report’s authors concluded.

“When a person is incarcerated before their trial, they lose more than just their liberty. Pretrial detention also triggers a cascade of harmful consequences. After just a few days in jail, a person can lose their job, access to medical care, custody of their children, and even their homes. These consequences reverberate for years. Individual lives, families and communities are devastated,” the report’s authors wrote.

State Rep. Summer Lee, D-Allegehny, who is now running for a new Pittsburgh-based congressional seat, has been one of the Legislature’s loudest reform voices. She’s called cash bail a ‘de facto debtor’s prison’ that can have ruinous and far-reaching consequences long after a person’s involvement with the criminal justice system has come to an end.

Her conclusions are buttressed by The Appeal’s analysis, which points to a January report by the U.S. Commission on Civil Rights which concluded that “pretrial detention, as currently used, tears apart individual lives, families, and entire communities.”

“Research shows that even a short stint in jail can have lasting consequences: lost jobs and housingincreased likelihood of pleading guilty, and higher odds of being arrested for new crimes in the future,” according to The Appeal. “Incarcerated people and their loved ones pay around $2 billion each year in nonrefundable bail fees, money which disproportionately comes from communities of color and low-income people.”

None of this, as The Appeal notes (and I reinforce) should be construed as papering over the very real rise in crime and murder rates. But nor should the clock be turned back on proven reforms because the get-tough crowd is looking for scapegoats who most often turn out to be poor and Black or brown.

(Getty Images)

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Philadelphia City Hall (Image via

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And now you’re up to date.

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John L. Micek

A three-decade veteran of the news business, John L. Micek is the Pennsylvania Capital-Star's former Editor-in-Chief.