Straight talk on bail and violent crime

"I don't get it," one guy told me, upon hearing I was a criminal law professor and a former prosecutor. "Why can't they just lock people up after they are arrested instead of having this revolving door with bail?"

It's a question I've answered before, and the answer starts with a basic principle of American justice: In this country, we are presumed innocent until proven guilty. That means that we can't just lock up everyone accused of a crime — it's not constitutional or ethical to incarcerate millions of people who are presumed innocent.

That principle is reflected in both the U.S. and Minnesota Constitutions. The Eighth Amendment to the federal Constitution establishes that "Excessive bail shall not be required," and the Minnesota Constitution provides the same thing at Article 1, Section 5. The Minnesota Constitution, though, goes even further in Section 7 and requires that bail be made available in all but the most serious cases: "All persons before conviction shall be bailable by sufficient sureties, except in capital cases where the proof is evident or the presumption great." In other words, denying bail or requiring excessive bail is straight-up unconstitutional in this state in nearly all cases.

The issue of bail policy is a hot topic right now, and often associated with a spike in violent crime. Claims that the spike in violent crime here is due to "bail reform," though, are probably unfounded.

First, Minnesota has not implemented large-scale bail reform, though some courts did temporarily adjust policies in the early months of the COVID pandemic to reduce jail populations.

Second, in states where bail reform did occur, there has not been a proven link to an increase in crime. For example, in the state of New York, there actually was significant and systemic bail reform in 2019, when the Legislature there eliminated bail for misdemeanors and some nonviolent felonies. Those reforms came on line in early 2020, meaning that the effect of those changes can now be measured. And those results are encouraging. Empirical studies by two outside bodies, the Comptroller of New York City and the Brennan Center, concluded that no direct evidence showed a link between those reforms and the increase in crime New York experienced.

Finally, the "bail reform" trial balloon as a cause of the spike in some kinds of violent crime is punctured by the raw fact that crime went up almost uniformly in every city regardless of the bail policies there. According to the Major Cities Chiefs Association, 63 out of 66 municipalities saw a rise in homicide, rape, robbery or aggravated assault by early 2021 (the exceptions were Baltimore County, Baltimore city and Raleigh, N.C.). In other words, violent crime went up regardless of bail policy; larger forces are clearly at work.

The blaming of bail for violent crime is often staked not on data, but on a single case where someone out on bail for a lesser offense commits a much more serious one. The implication is that if we could just deny bail (or impose an unreasonable bail) for those lesser offenses, we could prevent the more serious crime by keeping people behind bars before trial. That's a pretty blunt tool, and one that runs afoul of the state Constitution and the bedrock principle that those accused of crimes are deemed innocent until proven guilty.

There is always a trade-off between liberty and safety; that's the underlying dynamic of criminal law. If we deprive more people of freedom, we achieve some measure of safety. After all, if we imprison half the population, we would incarcerate a number of people who otherwise would commit crimes. We could conceivably amend the Constitution — well, Constitutions (both state and federal) — and seek safety by denying bail entirely for a broad swath of low and mid-level offenses. The cost in liberty, though, and the shredding of the presumption of innocence, is too high a cost.

As a former prosecutor who trains future prosecutors, I very much want criminal law used wisely to reduce violent crime. There are better ways to do that, though, than gutting bail. The violent crimes that people in the Twin Cities are most concerned about, such as armed robbery and carjacking, are committed by a relatively small number of people who often commit the same type of crime several times. That means that doing more traffic stops or jacking up bail for misdemeanors are lousy tools to get to the people who commit those crimes, because they are such a small part of the population, even of the population of people who violate the law.

Much more effective at reducing the crimes we care most about are two measures that go right to that relatively small group that commits serial violent crimes: solving a higher percentage of those crimes, and executing outstanding warrants on gun charges and violent crimes. If we devote resources to those two tasks, we have a much better chance of actually solving a very real problem.

An increase in violent crime degrades a community and the lives of the people within it. If we want to counter that degradation, we need to avoid finger-pointing between different parts of the government and instead focus on what really will solve the violent crime problem while preserving our deepest values. Tossing aside the presumption of innocence or the Constitution won't make us safe — solving serious crimes will.

Mark Osler is the Robert and Marion Short professor of law at the University of St. Thomas School of Law.