Misdemeanor Bail – Marginal REVOLUTION

In Myself comments on brookings bail I pointed out that:

In New York City (2008-2013) most of those arrested had prior interactions with the criminal justice system. On average, each person arrested had 3.2 prior felony arrests and 5 prior misdemeanor arrests—convictions were considerably less than arrests, which suggests to me that the system is not convicting enough people. Interpretations may differ, but in any case, the typical arrested person has been arrested several times before.

…I think most Americans would be surprised and upset to know that by far the majority of those arrested are released before trial, 74% overall in New York City.

Also, bail-outs are obviously not a random sample of arrestees: bail-outs are, on average, more dangerous: they have twice as many arrests and twice as many sentences on average as those who are released . For example, the average defendant who fails to post bail has 6 prior felony arrests and 4 prior no-shows.

These numbers are not unique to New York City. In 34 states for which data could be collected, for example, the Bureau of Justice Statistics Found that the average person sent to jail in 2014 had 10.3 prior arrests (median 8) and 4.3 prior convictions (median 3)!

(These do not include the arrest and conviction that sent them to jail, so add one to arrive at the figures in Table 6.)

At Brookings I continued with the obvious, but controversial:

What’s going on here seems pretty obvious to me. There is a group of people whose work is a crime. So getting arrested is just part of their job and after being arrested and released, these people go back to work, it’s almost praise, they keep working until finally an arrest results in a conviction and they spend time behind bars.

As Tyler pointed out yesterday, The NY Times has an article on some of the extreme versions of this basic fact.

Nearly a third of all shoplifting arrests in New York City last year involved just 327 people, police said. Collectively, they were arrested and re-arrested more than 6,000 times, Police Commissioner Keechant Sewell said. Some take up shoplifting as a trade, while others are motivated by addictions or mental illness; Police did not identify the 327 people in the analysis.

These, by the way, are just criminals who are repeatedly caught. The problem is much bigger:

…By the end of 2022, theft of items valued under $1,000 was up 53% from 2019 at major business locations, according to a new analysis of police data by researchers at the John Jay College of Criminal Justice… Only about 34 percent resulted in arrests last year, compared to 60 percent in 2017.

The way bail reformers like to frame the issue of cash bail removal is to point to a misdemeanor case and say ‘look at this common person who was denied bail for a minor offence!’ In fact, what is happening is that judges are dealing with serial offenders: They are setting high bail rates for those who have already failed to appear on several prior misdemeanor charges. Eliminating cash bail for misdemeanors is one of those policies that sounds reasonable at first glance, but in practice leads to thieves who have already been arrested 20 times being arrested and released again. The “unaffordable bail” issue is also tricky. Judges set high bail amounts for a reason!

I am not against the reform. As I wrote in 2018 in We can’t avoid the ugly trade-offs of bail reform:

Sometimes the poor are unfairly held until trial. However, removing the money bond is a crude and dangerous approach to this problem. Instead, we should directly address it by flagging and re-evaluating non-violent offenders incarcerated on low bail amounts, using alternative release measures like ankle bracelets, and most importantly, we should observe the constitution. The founders understood the ugly trade-offs, which is why the constitution guarantees the right to a “speedy trial.” Unfortunately, that right today is widely ignored. My path to reform would start with put teeth back in the constitutional right to a speedy trial.

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