Amanda Hernández | Stateline.org (TNS)
Crime is shaping up as a potent election issue, and one of the key points of debate is over bail: Which suspects should be jailed before trial, and which ones should be released on bond — and for how much money?
Some conservatives argue that lenient bail policies put suspects who are likely to commit crimes before their upcoming court hearings, or who might skip bail altogether, back on the street. But some progressives say research does not support that contention. They argue that detaining defendants because they can’t afford financial bonds is unfair, and note that such defendants are disproportionately Black, Latino and low income.
Illinois, New Jersey and New Mexico have moved away from the use of money bonds. But other states, such as Georgia and New York, are moving in the opposite direction, implementing stricter rules. Tennessee is considering a constitutional amendment that would give judges more discretion to deny bail amid concerns about rising crime rates.
Politicians on both sides of the debate often connect bail policy to crime rates. But experts say doing so is problematic, because so much of the crime data that states and cities use is unreliable.
The reality, experts say, is that most crime data is too unreliable to pinpoint specific policies as the sole cause of increasing or decreasing crime rates. The bail system also is oftentimes misunderstood as a form of punishment rather than the process for releasing individuals before trial under certain conditions.
“There’s nothing out there that shows a correlation or a connection of any sort between increasing the rates of pretrial release and the rates of crime,” said Spurgeon Kennedy, vice president of the Crime and Justice Institute, a nonprofit criminal justice research organization. Kennedy previously served as president of the National Association of Pretrial Services Agencies.
These misconceptions about crime can leave voters vulnerable to misinformation ahead of local and national elections.
“If you ask the typical person on the streets, ‘Do you think crime is up or down over the last year,’ they will tell you, ‘Oh, it’s up. It’s way up.’ But we’ve seen reductions in crime overall and also in violent crime,” Kennedy said. “So the facts don’t follow the argument, and that’s unfortunate because that makes it much more easier to keep this out as a political football.”
Both chambers of Georgia’s legislature passed a bill this month that would add 30 additional felony and misdemeanor crimes to the state’s list of bail-restricted offenses, which means that people accused of those crimes would be required to post cash bail. They include charges of unlawful assembly, racketeering, domestic terrorism and possession of marijuana.
The bill also would prevent any individuals or organizations from posting cash bail more than three times per year unless they establish themselves as bail bonding companies, severely limiting charitable bail funds. The bill is now headed to Republican Gov. Brian Kemp’s desk.
Some criminal justice advocates say the bill, if enacted, would clash with changes made by a 2018 law to the state’s legal system for people accused of misdemeanors. That law, which was championed by former Republican Gov. Nathan Deal, mandates that judges take into account the financial circumstances of the accused when setting bail.
Proponents of the new bill, which was first introduced last year, argue that the measure is necessary to deter crime, support victims of crimes and hold repeat offenders accountable. State Sen. Randy Robertson, who sponsored the bill, said it focuses on people accused of violent crimes.
“What we’re focusing on is trying to get the nonviolent individuals back out into the workforce and back to their families,” Robertson said in an interview. Robertson, a Republican, argued that the bill would also lead to a “dramatic decrease” in the state’s jail population because it offers a pathway for organizations, such as churches and nonprofits, to set themselves up as bail bonding companies.
Those organizations would have to meet the same legal requirements as bond companies, including undergoing background checks, paying fees, and having an application approved by a local sheriff’s department.
Some opponents, though, argue that it would lead to overcrowding of jails and disproportionately harm low-income and Black and Hispanic communities. The ACLU of Georgia has threatened to sue the state if the bill is signed into law, arguing that it’s unconstitutional.
Robertson said that some of the criticisms raised are “rehash complaints” he has heard for the past 25 or 30 years.
“There has been no evidence, independent research that shows placing low bails, allowing judges to set bails at whatever they choose to, keeps a disproportionate amount of individuals held in our jails,” Robertson said. “I don’t think that [this bill] touches the third rail of constitutionality at all.”
Pretrial data and research
Several research studies, though, suggest that setting money bail isn’t effective in ensuring court appearances or improving public safety.
Pretrial policy experts say that being in jail for even a few days or weeks can cost people their homes or jobs or damage their personal relationships, said Matt Alsdorf, an associate director with the Center for Effective Public Policy and the co-director of the group’s Advancing Pretrial Policy and Research project.
“The use of unnecessary detention has negative impacts, even if you’re just looking at it through a public safety or crime prevention lens,” he said.
Pretrial recidivism has long been studied by criminal justice experts: A 2013 study of more than 150,000 people who were jailed in Kentucky found that longer detention periods increased the likelihood that people would be rearrested both during the pretrial period and within the first two years following the closure of their case. The study also found that people who were held for two or three days had a 9% greater likelihood of failing to appear in court than people who were held for one day.
Furthermore, a study published in the Criminology & Public Policy journal last year found that Black defendants were 34% more likely than white defendants to be recommended to be held behind bars until their cases were resolved.
“The money bond system is a very regressive system that effectively ends up acting as a means of incarcerating populations that are typically already disadvantaged,” Alsdorf said.
In places that have relaxed their bail practices, audits show that pretrial jail populations usually drop following the changes. In some jurisdictions, there also are fewer arrests for certain types of offenses.
In Houston, a lawsuit claiming misdemeanor bail practices in Harris County were unconstitutional led to a settlement and consent decree in 2019. The county is required to release most people charged with misdemeanors on a personal bond, meaning defendants simply promise to attend their next court date.
In the latest independent monitoring report on the system, from 2023, observers wrote that the changes “have saved Harris County and residents many millions of dollars, improved the lives of tens of thousands of persons,” and resulted in “no increase in new offenses by persons arrested for misdemeanors.”
Brandon Garrett, the lead monitor and a Duke University School of Law professor, said in an interview that racial disparities “vanished overnight” after bail practices were relaxed. The monitors have also found an overall decline of about 8% in misdemeanor arrests between 2019 and 2022.
“There were real concerns about the racial disparities of the old cash bail system, and it was pretty remarkable just how quickly those disparities — in terms of who ended up in jail and who didn’t — vanished,” Garrett said.
‘Intentional and deliberate’
In 2017, New Jersey moved away from the use of cash bail in favor of the Public Safety Assessment, an algorithm tool that uses nine factors from an individual’s criminal history to predict their likelihood of returning to court for future hearings and remaining crime-free while on pretrial release.
The changes encouraged more “intentional and deliberate” detention hearings, recalled now-retired trial court Judge Martin Cronin, who sat on the committee that unanimously recommended the switch to a more risk-based bail system.
Cronin, now a consultant with Pretrial Justice Solutions, LLC, said the state’s new system offers more accountability and transparency.
“You’re focused on what are the permissible reasons for detention and how does the record tie into that, individualized to that defendant who’s in front of you,” Cronin told Stateline. “There is real accountability there. … It’s a fundamentally different process.”
Between 2015 and 2023, New Jersey’s pretrial jail population decreased by 27.2%, according to the state judiciary’s Criminal Justice Reform Statistics report last year.
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