Pretrial Justice Reforms Do Not Reduce Public Safety, Report Confirms

    COVID-19 has transformed the landscape of American life, from the mundane, like how people work and socialize, to the traumatic, such as how they are locked up. The airborne and contagious nature of the virus has made claustrophobic, unsanitary places like our jails petri dishes for its spread. Even in areas of the country where the political needle has not moved on mass incarceration and the drug war since the 1990s, local sheriffs, mayors and county commissions have felt enough pressure to take action to alleviate the jail overpopulation crisis that meaningful releases of pretrial detainees have sometimes occurred.

    There are real questions about what many more conservative jurisdictions will do in terms of jail policy after the pandemic comes to an end. However, even before COVID-19, many other jurisdictions had already been experimenting with letting more people facing criminal charges await their trial dates from the safety of their own homes.

    The Prison Policy Initiative, a national-facing nonprofit based in Easthampton, Massachusetts, just released a groundbreaking new report studying the impacts of these pretrial justice reforms on four states, as well as nine populous counties and cities. Analyzing public safety data from before and after the implementation of local reforms, the report comes to the conclusion that releasing people from confinement pretrial does not harm public safety.

    Contrary to law enforcement messaging that both crime and victimization would increase, crime data showed a 16 percent drop.

    In 2017, the New Jersey legislature virtually eliminated cash bail in favor of a risk-assessment approach to pretrial release. By 2019, the statewide jail population statewide had decreased by 45 percent. Contrary to law enforcement messaging that both crime and victimization would increase, crime data showed a 16 percent drop from 2016 to 2018, as well as negligible change in the number of people arrested while on pretrial release.

    The stories are similar for the other states studied. Kentucky saw a decline in new arrests for people released pending trial, while New Mexico saw declines in both crime rates and rearrest rates. In New York, there was a sharp decrease in the number of people incarcerated pretrial after reforms were enacted, but, thanks to the state’s district attorneys stoking fears of a hypothetical crime wave and particularly heinous crimes, it only took a few months for the legislature to reverse course.

    On the local level, Washington, DC has represented a success story on pretrial justice changes for years. The city largely eschewed cash bail in the 1990s, and today, less than 10 percent of people released following arrest are released contingent on a financial bond. In San Francisco, where progressive District Attorney Chesa Boudin took office at the beginning of the year, prosecutors are no longer seeking cash bail; just like in DC, only about 10 percent of people awaiting trial at home are arrested again during that period. In neighboring Santa Clara County, California, which includes San Jose, the results of a similar policy were even more impressive, with 99 percent of impacted people not getting rearrested.

    If these data points seem to some to contradict common sense, it is because television shows about crime and justice, together wth other media depictions, focus on dramatic, terrible crimes like rape and murder. In fact, the lion’s share of any local or state prosecutor office’s caseload consists of minor, even petty, crimes.

    Laura Conover, the newly-elected reformist county attorney in Pima County (Tucson), Arizona, importantly made crucial but little-known statistics about the county and state justice system front and center in her campaign. Linking to data from Pima County Superior Court and the Arizona Department of Corrections, Conover explained how “more people were charged with a felony drug offense as the most serious charge than with any other kind of felony offense, which has been true for fourteen of the last seventeen years.” In addition, she noted how Pima County “sends more people to prison and jail and places more people on probation for drug possession as the most serious charge than for any other type of crime.” This holds true for Arizona as a whole, as well as many other places across the nation.

    None of this stops the fear-mongering about pretrial reform, especially from law-and-order conservatives and last generation’s law enforcement officials. What motivates these reactions?

    Aside from the desire to appear “tough on crime,” some of these figures may be looking out for their personal lives. For prosecutors, making the case to a judge that someone is an imminent menace to the community takes more effort than simply asking to hold someone on a routine bail amount on the basis of the underlying crime charged.

    In New Mexico, Albuquerque DA Raul Torrez’s prosecutors often refused to give this extra information, even after voters said yes to a 2016 ballot initiative that required just this. Across the nation in Brooklyn, assistant prosecutors quit in droves after a set of criminal justice reforms (including bail reform) allegedly increased the amount of hours they had to spend at work



    Photograph of a National Civil Rights Museum recreation of Martin Luther King’s cell at Birmingham Jail by Adam Jones via Wikimedia Commons/Creative Commons 3.0.

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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