To reduce viral transmission in courts and jails during the pandemic, the Judicial Council of California established an emergency policy setting bail at zero dollars for most misdemeanors and felonies. In a recent briefing, PPIC research fellow Deepak Premkumar outlined findings from a new report about the effects of this policy on rearrests and offered insight into improving pretrial detention procedures.
The statewide emergency policy, which was in place from April to June 2020, dramatically increased the number of people released pretrial. “If you were arrested for a zero-bail-eligible offense, no payments were needed … you were arrested and then immediately released,” said Premkumar. People arrested for ineligible offenses, including most serious, sexual, and violent crimes, were still detained in jail unless they posted bail. After the statewide mandate ended, about half of counties—making up over 80% of California’s population—kept emergency bail measures in place, though they generally modified them to suit local needs.
As concerns about rising crime grew in 2020, some observers criticized these emergency bail orders as creating a “revolving door,” releasing arrested individuals and potentially allowing them to commit other crimes. Premkumar and his coauthors explored this question by examining rearrests in the ten weeks after emergency bail orders were implemented. They found the likelihood of rearrest within 30 days increased by 8.2 percentage points, notably higher than the 14.6% of people rearrested prior to implementation. The researchers found that the increase in rearrests was driven by felonies; however, there was no impact on rearrests for violent felonies.
For counties that had emergency bail orders in place for at least a year, overall rearrests for zero-bail offenses subsided after a few months into implementation, rendering the effects insignificant over the full year. The exception was the increase in rearrests for felony zero-bail offenses, which was “significant and enduring” for this subset of counties. Premkumar emphasized that more research is needed to understand the factors behind this increase.
The reestablishment of case management services for released individuals and community crime-prevention programs that had paused briefly during the onset of the pandemic may have contributed to the decline in rearrests while emergency bail orders were still in place. Modifications to these orders by county superior courts and changes in law enforcement strategies may have also affected rearrests. These important differences in context between the implementation and the revocation of these emergency measures may also be the reason why the researchers found no impact on the overall likelihood of rearrests when emergency bail orders were eventually lifted.
Even before the pandemic, recent court cases “challenging the constitutional nature of whether bail is equitable for low-income defendants” have caused shifts in the bail landscape, said Premkumar. As policymakers weigh the merits of bail reform and the potential effects on public safety, these findings highlight some short-term risk to a blanket policy on pretrial detention. Premkumar suggested that pretrial risk assessments, which take into account an individual’s criminal history along with other factors, could be a more promising approach.
