Post #166

675 words; 3 minutes to read

As readers of this blog know, the bulk of people in provincial jails in Canada – more than 60%, or about 15,000 people on any given day – are held despite not being convicted of any crime.  They are on remand.  One of the prime reasons for holding people on remand is fear that they will commit a crime if released.

Critics of our bail and remand system have long contended that this fear is inaccurate.  A new US study  shows supports that view, showing that jurisdictions that reduced the use of remand did not see significant increases in crime.  Moreover, many studies show that holding people on remand creates many harms for them and their families.

The study, by the Prison Policy Initiative  (a US organization that does excellent analytical work on many justice issues), looked at 4 states and 9 cities or counties which had data on public safety from before and after the adoption of pretrial reforms. All but one of these jurisdictions saw decreases or negligible increases in crime after implementing reforms that reduced numbers in remand, often very substantially.  Each of these jurisdictions implemented a somewhat different reform, but they had very similar results.

Some examples

In New Jersery, in 2017 the New Jersey legislature passed a creating more release.  The pretrial population decreased 50% from 2015 to 2018.  At the same time, violent crimes decreased by 16% and there was essentially no difference in the number of people arrested while on pretrial release.

In San Francisco,  the city began in 2016 using a validated risk assessment tool. The San Francisco Pretrial Diversion Project also helps by offering alternatives to fines, dismissals of charges for “first time misdemeanor offenders” who complete treatment plans, and other forms of support for people navigating the system. The jail population decreased by an average of 47%.  The city’s measure of the rate at which people commit new crimes while awaiting trial is 10%.

In Philadelphia in 2018, the District Attorney’s office stopped seeking money bail for some misdemeanors and nonviolent felonies.  90% of people facing misdemeanor charges were released without bail.  Researchers found no difference in recidivism after the reforms.

In New Orleans, a 2017 ordinance passed by the city council virtually eliminated money bail for people arrested on municipal offenses. Since then, the city has implemented a risk assessment tool and releases some low-risk arrestees without bail. There number of people released without bail went from 1.9% to 8.3% between 2009 to 2019.  Analysis found that defendants released without paying bail were no more likely to be rearrested than those who paid bail.

Canada is different, but the lessons apply

The American system of bail is different from that in Canada.  Canada does not use cash bail in the same way some US jurisdictions do.  And each of these jurisdictions (and the others in the study) made its own unique change. What they have in common is that many fewer people were being held in jail – especially people of colour – and the amount of crime did not change as a result.  That is highly relevant to the Canadian situation in which people can spend weeks or months in detention because they do not have a surety or for other reasons unrelated to their risk of committing a crime.  Remand also works more harshly for those who are already poor or margainalized.

But, as the report notes, crime rates are only one crude measure of the value of these policy changes.  As other posts on this blog have pointed out, pretrial reforms promote other benefits that can be just as important, such as individuals who can remain at home instead of in a jail cell, people who can retain employment and continue to care for their families, children who are able to stay in their parents’ care, and significantly reduced costs to the public.

The problems in Canada’s bail and remand system are not new; the reports cited earlier, and others,  have stated them clearly.  The Supreme Court has made several rulings against excessive pre-trial detention, including the Myers case.  Yet the reality on the ground has hardly changed.



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