Bail Reform: Are We Making Our Communities Safer or More Dangerous?

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At the heart of the American criminal justice system lie two foundational principles: the presumption that an individual is innocent until proven guilty and the constitutional right to liberty.

Every day, a critical decision is made in courtrooms across the country that tests the balance between these ideals and the state’s interest in ensuring justice is served.

This decision revolves around bail, the process of releasing people who have been arrested and charged with crimes while they await trial.

In its purest form, bail isn’t a punishment or a fine. It’s a financial guarantee—an amount of money a defendant must provide to the court—intended for a single purpose: to ensure that person will return for all required court appearances.

If the defendant complies, the money is returned at the conclusion of the case.

However, a powerful and contentious nationwide movement argues that this system has strayed far from its original intent. Critics contend that the reliance on cash bail has created a two-tiered system of justice, one that effectively criminalizes poverty by jailing those who cannot afford to pay, while allowing those with financial means to purchase their freedom, regardless of the risk they may pose.

This, they argue, leads to widespread wealth-based and racially disparate incarceration.

In response, a wave of “bail reform” initiatives has swept across the country, seeking to reduce or eliminate the role of money in pretrial decisions. These reforms, however, have ignited a fierce counter-argument.

Opponents, including many in law enforcement and some prosecutors, warn that these changes jeopardize public safety by releasing potentially dangerous individuals back into communities. They point to high-profile tragedies and argue that dismantling the traditional bail system removes a crucial tool for protecting the public and ensuring accountability.

How do we balance individual liberty, fairness, and community safety in the crucial period between an arrest and a trial?

Why We Have Bail

The concept of bail isn’t a modern invention; its roots stretch back centuries to feudal England. Initially, it wasn’t about money. When an accused person was arrested, a sheriff might entrust them to the custody of a “surety”—a friend, relative, or acquaintance who would physically guarantee the defendant’s appearance in court.

Over time, particularly as societies became more transient with westward expansion in America, this personal guarantee evolved into a financial one. The practice shifted toward a pledge of property or money, which would be forfeited if the defendant failed to appear.

This tradition was carried into the American colonies and enshrined in the nation’s founding documents. The Judiciary Act of 1789, one of the first laws passed by the U.S. Congress, established that all non-capital crimes were bailable.

The principle was further cemented in the Eighth Amendment to the U.S. Constitution, which states, “Excessive bail shall not be required.” It’s critical to understand what this clause does and doesn’t do.

It prohibits bail from being set at an unreasonably high amount for the purpose of keeping someone detained who is otherwise eligible for release. However, it doesn’t establish an absolute right to bail in every case, nor does it mandate that bail must be affordable for every defendant.

The Original Purpose

For most of its history, the primary and explicit purpose of bail was singular: to provide a reasonable assurance that a defendant would appear for trial and all related court proceedings.

It was designed as a tool to prevent flight from justice, not as a form of punishment or a means of preventive detention. The return of the bail money upon the case’s conclusion underscores this principle—it’s a security deposit, not a fine.

When a judge or magistrate sets a bail amount, they’re tasked with weighing several factors. Traditionally, these have included:

• The risk of the defendant fleeing: This involves assessing the defendant’s ties to the community, such as having a steady job, family in the area, or long-term residency
• The type and severity of the alleged crime: More serious charges often lead to higher bail amounts
• The defendant’s criminal history: A record of prior offenses or failures to appear in court can influence the decision
• The “dangerousness” of the defendant: This factor has become increasingly prominent in bail decisions

In some cases, a judge may determine that a financial bond isn’t necessary and release a defendant “on their own recognizance” (ROR), which is a simple promise to return to court.

The Shift in Purpose

The modern landscape of bail in the United States has been profoundly shaped by two key pieces of federal legislation. The Bail Reform Act of 1966 was a landmark law that created a presumption in favor of releasing non-capital defendants on their personal recognizance or an unsecured bond, unless a judge determined that such release would not reasonably assure their appearance in court.

This act was a direct response to concerns that the bail system was unfairly punishing the poor.

However, a significant shift occurred with the passage of the Bail Reform Act of 1984. Amid growing concerns about crimes committed by people out on bail, this law fundamentally altered the purpose of the pretrial decision.

For the first time in federal law, it explicitly authorized “preventive detention,” allowing judges to deny bail altogether to individuals deemed a danger to the community.

This act codified a “purpose creep” that had been informally developing for years. The goal of the bail hearing was no longer just about ensuring a defendant’s return to court; it was now equally, and often primarily, about assessing and mitigating future risk to public safety.

This evolution is central to the entire modern debate. The conflict isn’t merely about the mechanics or amount of bail, but about the fundamental question of what the pretrial system is trying to achieve.

When reform advocates argue that a person’s wealth shouldn’t determine their freedom, they’re often operating from the traditional premise that bail is about securing a court appearance. When opponents argue for detaining a “dangerous” individual regardless of the charge, they’re operating from the newer premise that bail is a tool for public safety.

The Case for Reform

The movement to reform or abolish cash bail is built on arguments contending that the current system is not only unfair but also counterproductive to public safety. Proponents argue that decades of reliance on monetary conditions have created a system that is inefficient, discriminatory, and causes immense harm to individuals, families, and communities.

Wealth-Based Detention

The central pillar of the pro-reform argument is that the cash bail system creates a two-tiered structure of justice where freedom is contingent on wealth.

In this system, a person who may pose a significant risk to the community but has financial resources can purchase their freedom, while a person accused of a minor offense who poses little risk but is poor remains incarcerated.

The scale of this issue is vast. On any given day, nearly half a million people are held in local jails across the U.S. before being convicted of any crime. This unconvicted population makes up over 70% of the total number of people in local jails.

For the vast majority of these individuals, the sole reason for their continued incarceration is the inability to afford the bail amount set by a court.

The financial barrier is often insurmountable; while the average bail for a felony case can be $10,000, roughly half of Americans struggle to afford a $400 emergency expense.

Reform advocates argue this practice violates the core constitutional principles of equal protection and due process, effectively punishing people for being poor before their guilt has been established.

Disproportionate Impact on Communities of Color

The burden of the cash bail system doesn’t fall equally across all demographics. A substantial body of evidence shows that it disproportionately harms Black and Hispanic individuals, who are more likely to have monetary bail imposed, receive higher bail amounts for similar offenses, and be unable to pay.

Research indicates that young Black men are approximately 50% more likely to be detained pretrial than their white counterparts.

A study analyzing bail-setting practices in Miami and Philadelphia found that Black defendants were not only more likely to be assigned monetary bail but also received bail amounts that were, on average, over $14,000 higher than those set for white defendants in comparable cases.

These disparities are exacerbated by the persistent racial wealth gap in the United States, which means that even if bail amounts were set equally, they would have a more burdensome impact on minority defendants.

This systemic inequity means that at every stage, from arrest to the bail hearing, racial disparities compound, contributing to the overrepresentation of people of color in pretrial detention.

The Human and Economic Costs

The consequences of being unable to afford bail extend far beyond the walls of a jail cell, creating a cascade of negative outcomes that can permanently alter the course of a person’s life.

Life Destabilization: Even a few days of pretrial detention can be catastrophic. An individual can lose their job, as many employers will not tolerate an unexplained absence. They can be evicted from their homes or lose their spot in a shelter.

For parents, particularly mothers, detention can lead to losing custody of their children. This profound destabilization affects not only the individual but sends ripple effects of economic and emotional hardship through their entire family and community.

Coercive Plea Bargaining: Pretrial detention is one of the most powerful drivers of convictions in the American justice system. Faced with the prospect of languishing in jail for weeks or months while their case proceeds, many defendants feel immense pressure to plead guilty, even if they are innocent, simply to secure their release and return to their lives.

Studies show a direct correlation between being detained pretrial and an increased likelihood of accepting a guilty plea and receiving a longer sentence.

Health Consequences: Jails are often overcrowded and can be dangerous environments that pose significant health risks. Incarceration is associated with higher rates of infectious diseases like HIV, tuberculosis, and hepatitis C, as well as chronic conditions such as hypertension and asthma.

The psychological toll is also severe, with higher rates of anxiety, depression, and suicide among the jail population, particularly those held pretrial.

The Criminogenic Effect

Perhaps the most powerful argument for reform is that this cycle appears to be criminogenic—that is, it makes future crime more likely. Multiple studies have found that defendants detained pretrial, even for short periods, are significantly more likely to be arrested for a new crime in the future compared to similarly situated defendants who were released.

One study found that low-risk defendants held for just eight to 14 days were 51% more likely to commit another crime than those held for less than 24 hours.

This suggests that the cash bail system, far from promoting public safety, may be actively undermining it by trapping people in a cycle of poverty and incarceration that makes re-offense more probable.

The Case Against Reform

While the case for reform is rooted in principles of fairness and equity, the opposition is grounded in a visceral concern for public safety. Opponents, including many law enforcement organizations, prosecutors’ associations, and the commercial bail bond industry, argue that dismantling the traditional cash bail system is a dangerous experiment that unleashes criminals into communities and erodes the rule of law.

The Public Safety Imperative

The primary argument against bail reform is that it directly endangers the public by making it easier for potentially violent individuals to be released from custody while awaiting trial. This perspective is often amplified by high-profile, tragic incidents where a person released under new reform laws goes on to commit a serious, violent crime.

For example, the case of Tiffany Harris in New York, who was released without bail after allegedly attacking three women and was arrested for another assault the next day, became a rallying cry for those who believed the reforms had gone too far.

Opponents argue that these aren’t isolated anecdotes but predictable consequences of a flawed policy. They contend that while reform advocates focus on systemic issues, they ignore the immediate threat posed by individuals with a history of violence or other indicators of dangerousness.

The core belief is that pretrial detention, secured through an unaffordable bail amount if necessary, serves a critical incapacitation function, keeping dangerous people off the streets.

The “Revolving Door” Problem

A related concern is the creation of a “revolving door” or “catch and release” justice system, particularly for repeat offenders. Critics argue that when individuals, especially those involved in offenses like retail theft or drug crimes, are repeatedly arrested and immediately released without facing any immediate consequence like posting bail, it fosters a “cultural shift in criminality.”

The perception grows that there’s little to fear from arrest, which they claim emboldens criminal behavior and erodes public order. This argument is often used to explain perceived increases in property crimes and quality-of-life offenses in jurisdictions that have enacted reforms.

Stripping Judicial Discretion

A major point of contention, especially with early reform models like New York’s 2019 law, is that they strip judges of the necessary discretion to make individualized public safety determinations.

These laws often create lists of “qualifying offenses” for which bail can be set, mandating release for all other charges. Opponents argue that this rigid, charge-based approach is dangerously simplistic.

A judge on the front lines, they contend, should have the authority to consider the totality of the circumstances—including a defendant’s criminal history, pattern of behavior, and the specific facts of the case—to detain an individual they believe poses a clear threat to the community, even if the current charge isn’t on a pre-approved list.

Removing this discretion, in their view, ties the hands of the judiciary and prioritizes legislative mandate over on-the-ground public safety assessment.

The Effectiveness of Financial Incentives

Proponents of the traditional system also maintain that financial conditions are a uniquely effective tool for ensuring defendants return to court. The argument is that having “skin in the game”—either one’s own money or money secured from family and friends—creates a powerful incentive to comply with court requirements.

The commercial bail bond industry positions itself as a private-sector partner in this process, taking on the financial risk and using its resources to track down defendants who flee.

Some research cited by conservative think tanks suggests that defendants released on a financial surety bond are significantly less likely to fail to appear in court and have lower fugitive rates compared to those released on their own recognizance.

Alternatives to Cash Bail

As jurisdictions move away from a primary reliance on cash bail, they’ve turned to a diverse set of alternative tools and strategies. These approaches aim to achieve the goals of the pretrial system—ensuring court appearance and maintaining public safety—without resorting to wealth-based detention.

The “reform toolkit” isn’t a single policy but a spectrum of options, from simple reminders to complex algorithmic systems.

Non-Financial Options

These alternatives focus on release conditions that don’t require an upfront payment from the defendant.

Release on Recognizance (ROR): This is the least restrictive option, where a defendant is released based on their written promise to appear at all future court dates. It’s typically used for individuals charged with low-level, nonviolent offenses who are deemed to be neither a flight risk nor a threat to public safety.

Supervised Release: In this model, defendants are released into the community under the supervision of a pretrial services agency. Supervision can involve a range of conditions, such as regular check-ins (in person or by phone), drug testing, stay-away orders, or participation in supportive services like mental health counseling, substance abuse treatment, or job training.

New York City’s Supervised Release program, launched in 2016, is a prominent example that has diverted tens of thousands of people from potential detention.

Unsecured and Partially Secured Bonds: These are financial bonds designed to be less punitive than traditional cash bail. An unsecured bond requires no money upfront; the defendant simply signs a contract promising to pay the court a specified amount if they fail to appear.

A partially secured bond requires the defendant to pay a small, refundable deposit to the court, typically 10% or less of the total bond amount. These options maintain a financial incentive for court appearance without creating an insurmountable barrier to release.

Simple Reminders: A growing body of evidence shows that some of the most effective and least costly interventions are simple reminders. Studies have found that automated phone calls, mail reminders, or two-way text messaging systems that notify defendants of upcoming court dates can dramatically reduce failure-to-appear rates, in some cases by over 40%.

Electronic Monitoring

Electronic monitoring, typically in the form of a GPS-enabled ankle monitor, has seen a dramatic rise in use as an alternative to jail. This technology allows authorities to track a defendant’s location in real-time and enforce conditions such as home confinement or exclusion from certain areas.

While proponents argue it provides a middle ground between outright release and detention, the practice is controversial. Critics refer to it as “e-carceration” or a “digital jail,” pointing out that defendants are often charged hefty daily fees for the monitoring device, shifting costs from the state to the individual.

Furthermore, its effectiveness is debated; some studies have found no significant difference in court appearance rates between those on electronic monitoring and those without it.

Risk Assessment Tools

Perhaps the most complex and debated alternative to cash bail is the pretrial risk assessment tool (RAT). These tools represent a major shift toward a data-driven, algorithmic approach to pretrial justice.

How They Work: RATs are algorithms that analyze a set of data points about a defendant to produce a “risk score”. This score is designed to predict the likelihood of two specific outcomes: failure to appear in court (FTA) and new criminal activity (NCA) during the pretrial period.

The factors used vary by tool but commonly include static information such as age at arrest, the current charge (whether it’s violent), and criminal history (prior convictions, prior failures to appear, prior sentences to incarceration).

The resulting score is often categorized as “low,” “moderate,” or “high” risk, which then informs a judge’s decision on whether to release, detain, or impose conditions.

The Public Safety Assessment (PSA), developed by Arnold Ventures, is one of the most widely used tools in the country.

The Promise and the Problem: Proponents see risk assessment as a way to make pretrial decisions more objective, consistent, and scientific. The goal is to replace the “gut instinct” of individual judges, which can be influenced by implicit bias, with an evidence-based tool that can more accurately sort defendants by risk level.

The promise of objectivity has been met with intense criticism. The central problem, critics argue, is that the tools are built using historical criminal justice data.

This data isn’t neutral; it reflects decades of documented racial and socioeconomic biases in policing, arrests, and convictions. Because people of color have been disproportionately arrested and convicted, any algorithm trained on this data will inevitably learn to associate race with risk, even if “race” itself isn’t an input factor.

This creates a “racism in, racism out” dynamic. A landmark 2016 investigation by ProPublica on the COMPAS tool used in Florida found that the algorithm was significantly more likely to falsely flag Black defendants as high-risk for future crime than white defendants.

Real-World Results

The theoretical debate over bail reform has been put to the test in jurisdictions across the country, creating real-world laboratories for these new policies. The results from these states have become national bellwethers, providing crucial data points for both supporters and opponents.

The experiences of New York, Illinois, and New Jersey, in particular, offer a detailed look at the different paths reform can take and the complex outcomes that follow.

New York: The Reform and Backlash Cycle

The Reform: In April 2019, New York passed a sweeping law that, effective January 2020, eliminated cash bail and pretrial detention for the vast majority of misdemeanors and non-violent felonies.

A crucial and highly controversial feature of the original law was that it largely prohibited judges from considering a person’s perceived “dangerousness” when making release decisions for these offenses; the primary legal consideration was what was necessary to ensure return to court.

The Backlash: The implementation of the law was met with immediate and intense backlash from law enforcement, Republican politicians, and some moderate Democrats. This opposition was fueled by relentless media coverage of high-profile crimes committed by individuals released under the new statute.

In response to the political pressure, state lawmakers amended the law in April 2020 and again in 2022, rolling back some of the changes by making more offenses bail-eligible and granting judges more discretion, including for certain repeat offenders.

The Data: The reforms led to a dramatic and immediate reduction in the state’s jail population. Statewide, the number of people in jail dropped by over 30% after the law took effect.

In 2021, bail was set in about 14,500 cases in New York City, a significant decrease from over 24,600 in 2019. However, for the cases that remained bail-eligible, judges appeared to set higher amounts; the average cash bail amount in NYC doubled from roughly $19,000 in 2019 to over $38,000 in 2021.

The impact on public safety is the most contested area. Multiple analyses, including one by the NYC Comptroller, found that pretrial rearrest rates remained nearly identical before and after the reforms. In any given month, about 96% of people with a pending case were not rearrested, and 99% were not rearrested for a violent felony.

A detailed study by the Data Collaborative for Justice at John Jay College found that eliminating bail for most misdemeanors and non-violent felonies actually reduced recidivism in New York City.

However, the same study found that for a smaller subgroup of individuals with more serious charges or extensive criminal histories, the original reforms led to an increase in rearrest rates, suggesting the later amendments that made some of these cases bail-eligible again may have enhanced public safety.

Illinois: First State to Abolish Cash Bail

The Reform: In 2021, Illinois passed the landmark Pretrial Fairness Act (PFA), which, after surviving legal challenges, went into effect in September 2023. The law made Illinois the first state in the nation to completely abolish the use of monetary bail.

Under the PFA, all defendants are presumed eligible for release. Prosecutors can petition a judge to detain an individual only for a specific list of serious, detainable offenses, and they must prove in a hearing that the person poses a specific public safety threat or is a high risk of willful flight.

The Initial Results: While the law is still relatively new, the initial data from its first year has been closely watched.

As intended, jail populations have seen a significant decline. The Cook County (Chicago) jail population dropped by about 13%, with similar or even larger decreases in other counties across the state.

The reform has fundamentally changed the nature of pretrial hearings. What were once brief, minutes-long bail hearings have become longer, more substantive detention hearings where evidence is presented and judges provide detailed reasons for their decisions.

The most prominent fear of opponents—that abolishing cash bail would lead to a surge in crime—has not materialized in the first year. Data analysis by Loyola University Chicago and reporting by news outlets show that overall crime rates, including for violent and property crimes, have actually decreased since the PFA was implemented.

Furthermore, failure-to-appear rates for court dates have remained stable, slightly decreasing from 17% to 15%.

New Jersey: The Long-Standing Model

The Reform: New Jersey undertook comprehensive bail reform back in 2017, largely eliminating cash bail and replacing it with a risk-based system. The system is centered on the use of a validated risk assessment tool, the Public Safety Assessment (PSA), to inform judicial decisions.

Judges use the PSA score to decide whether to release a defendant and what, if any, non-monetary conditions are appropriate. Detention is reserved for high-risk individuals after a formal hearing.

The Outcomes: With several years of data, New Jersey is often cited as a model of successful reform.

The reform had a massive impact on incarceration, cutting the state’s pretrial jail population by 50% between 2015 and 2018.

Multiple studies have concluded that this dramatic reduction in jail population was achieved without a corresponding increase in crime. In fact, in the years following the reform, rates of violent crime, including homicides, robberies, and assaults, actually declined.

The rate at which released defendants were re-arrested for new offenses remained stable, changing by only one percentage point. A recent study specifically examining gun violence found that the reform had no measurable impact on firearm violence rates.

Why There’s No Simple Answer

The intense public debate over bail reform persists, in large part, because the data is complex, multifaceted, and can be interpreted to support starkly different conclusions. There’s no single, simple answer to whether bail reform makes communities safer or more dangerous.

Understanding why requires looking beyond the headlines and appreciating the methodological challenges and competing narratives that define the issue.

The Challenge of Proving Causation

The first major hurdle in assessing the impact of bail reform is isolating its effect from the myriad other factors that influence crime rates. Crime is driven by a complex web of social and economic conditions, policing strategies, and demographic trends.

It’s extraordinarily difficult to prove that a single policy change, like bail reform, is the direct cause of a subsequent rise or fall in crime.

This challenge was magnified immensely by the COVID-19 pandemic, which began just as many reforms, like New York’s, were being implemented. The pandemic caused unprecedented social and economic disruption, altering crime patterns nationwide and making simple pre-and-post comparisons of crime data highly unreliable.

The Battle of Studies

Reflecting this complexity, different studies have reached different conclusions. Broad, multi-jurisdictional analyses conducted by organizations like the Brennan Center for Justice and the Harry Frank Guggenheim Foundation have generally found no statistically significant evidence that bail reform leads to an increase in crime.

These studies compare crime trends in cities that enacted reforms with those that didn’t and find that the trends move in parallel, suggesting reform isn’t a primary driver of crime.

However, these findings aren’t universally accepted. Critics challenge the methodology of these broad studies, arguing they may obscure localized effects.

Other researchers, focusing on specific jurisdictions, have argued the opposite. For instance, a detailed analysis of Cook County, Illinois, by law professor Paul Cassell disputed earlier findings and concluded that the county’s bail reform led to a substantial increase in crimes committed by released defendants, including a 33% rise in new violent crimes.

This “battle of the studies” allows both sides of the debate to claim that the data supports their position.

Rates vs. Raw Numbers

Much of the public confusion stems from the fact that the same set of data can be framed to tell two completely different stories. This is most evident in the debate over “rates versus raw numbers.”

Using New York as an example, reform supporters point to the rate of rearrest. They emphasize that of the tens of thousands of people released under the new law, less than 4% were rearrested for a violent felony. This low percentage, they argue, proves the system is overwhelmingly safe and the public safety risk is minimal.

Opponents, in contrast, focus on the raw number. That same “under 4%” translates to over 3,400 people being rearrested for violent felonies. They argue that each of those numbers represents a victim and a preventable tragedy, and that such a large number of new crimes is an unacceptable policy failure, regardless of the percentage.

This isn’t a disagreement about the data itself, but a fundamental disagreement about which metric—the overall systemic success rate or the absolute number of failures—should guide public policy.

The Nuance Problem

The most sophisticated analyses reveal that the effects of bail reform aren’t uniform across all defendants. Sweeping statements about whether reform “works” or “fails” often miss crucial nuances.

The data from New York, for example, suggests a bifurcated effect. For people charged with less serious offenses and with limited criminal histories, eliminating bail appears to reduce future arrests.

However, for a smaller subgroup of people facing more serious charges and with substantial recent criminal histories, the original reforms were associated with an increase in future arrests.

This finding helps explain the political trajectory of reform in many places. The initial, broad changes are often followed by more targeted amendments that restore some judicial discretion for these specific higher-risk populations.

It suggests that the most effective and politically sustainable path forward may lie not in all-or-nothing approaches, but in carefully tailored reforms that distinguish between different levels of risk.

The persistent and often heated nature of the bail reform debate suggests it’s about more than just data. It’s a proxy war for two competing philosophies of justice.

One vision prioritizes the presumption of innocence, racial equity, and mitigating the immense harms of incarceration, arguing that true public safety is built by addressing the root causes of crime and poverty.

The other vision prioritizes immediate community safety, victims’ rights, and a system of clear consequences, arguing that the primary duty of the justice system is to incapacitate those who pose a threat.

Until there’s a broader societal consensus on which of these values should take precedence, the debate over bail reform, and the data used to wage it, is likely to continue.

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