New York is the epicenter of America’s Covid-19 crisis, but it’s also the focal point of the national debate about reducing jail populations through bail reform. The pandemic has renewed calls to cut incarceration further, which may reinvigorate the bail-reform movement. But it’s important to remember that this public health crisis is temporary, while the risks of bad bail reform will be lasting.
Last April, New York lawmakers passed legislation limiting the scope of criminal charges for which defendants could be required to post bail or be remanded to pretrial detention. Albany enacted these restrictions while maintaining an outmoded prohibition on judicial consideration of “dangerousness” in pretrial release decisions. Uniquely among the states, New York cannot consider public safety in any aspect of pretrial release.
The reforms resulted in a sharp rise in the number of defendants avoiding pretrial detention. This led, in turn, to prominently reported incidents in which released defendants were rearrested for new offenses. These incidents were accompanied by a rise in New York City crime through February, which set the public on edge and prompted calls to scale back the reform.
NYPD data showed that public anxiety wasn’t misplaced. In the first two months after bail reform took effect — January and February of this year — 483 people arrested for non-bail-eligible felonies in the city were rearrested (some more than once) for 846 new crimes. Thirty-five percent of those crimes were major felonies, including murder (1), robbery (99), felony assault (27), burglary (79), grand larceny and grand larceny-auto (93).
Public opinion about the Empire State’s bail reform took a nosedive just weeks after it went into effect. When the reforms were passed last spring, 55 percent of respondents to a Siena Poll thought the reform would be good. By mid-February, that number was down to just 33 percent, with 59 percent registering their opposition.
State leaders, including Gov. Andrew Cuomo and Senate Majority Leader Andrea Stewart-Cousins, committed to addressing public concerns in this year’s budget, finalized on April 3. Though the final bill included changes to last year’s reform, the revisions are modest and leave many holes unplugged.
The most notable “adjustment” is a small-scale expansion of “qualifying offenses” that were carved out in the 2019 reform as bail-eligible. The revised statute, however, maintains the misguided prohibition on judicial considerations of public-safety risk when deciding whether and under what conditions to release defendants pretrial.
And the updated statute still contains provisions that make bail more difficult to impose — even in qualifying cases — by requiring judges to choose the least-restrictive means of securing a defendant’s return to court, and to explain their decision on the record.
Almost all the crimes designated as “qualifying offenses” in 2019 involve violence, the threat of violence or sexual exploitation. This also applies to offenses added in 2020 — a tacit admission that dangerousness matters. So why not give judges the discretion to detain pretrial defendants who pose a potential danger to the public?
Critics of pretrial detention often cite the “presumption of innocence,” but the Supreme Court has ruled on multiple occasions that pretrial detention on public-safety grounds is constitutionally permissible.
The current law seems built on a presumption that the crimes for which a defendant is charged are a reliable indicator of the risk that he or she poses to the public during the pretrial period. They’re not. According to a study by the New York City Criminal Justice Agency, “the likelihood of [a failure to appear] and/or rearrest for a violent offense was lower among defendants initially arrested for felony-level violent and property offenses” than it was “among defendants initially arrested for all types of misdemeanor or lesser offenses.”
A fairer and more accurate way to assess a given defendant’s risk is through a validated algorithmic risk assessment tool (RAT), which calculates risk based on factors like criminal history and age. A recent study by the Center for Court Innovation illustrated the predictive accuracy of such a tool — even across racial groups, a crucial criterion, given the opposition of reformers who claim racial bias is built into the algorithms.
New York tried to balance equity and safety in 2019, but the effort proved lopsided. The new adjustments improve matters, but an important imbalance remains — one with implications for public order.
This piece originally appeared at the New York Post
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Rafael A. Mangual is a fellow and deputy director for legal policy at the Manhattan Institute and a contributing editor of City Journal. This piece was adapted from City Journal. He is the author of the recent Manhattan Institute issue brief, Reforming New York’s Bail Reform: A Public Safety-Minded Proposal. Follow him on Twitter here.
This piece originally appeared in New York Post