Bloomberg Law
Feb. 14, 2022, 9:00 AM

Don’t Blame Bail Reform for a Rise in Violent Crime—Just Fix It

Candace McCoy
Candace McCoy
John Jay College of Criminal Justice

An axiom of political gamesmanship is “never let a crisis go to waste.” It’s been attributed to Winston Churchill and repeated by Rahm Emanuel. There are gentler interpretations, but the wily politician’s is “when a crisis occurs, use it as a way to get something you want that is unrelated to it.”

Today’s crisis is the terrible gun violence occurring mostly in disadvantaged neighborhoods in cities throughout New York and the nation. In New York City, two young police officers in Harlem were point-blank murdered by a man visiting from Baltimore using his illegal Glock 45 semi-automatic and its 40-round magazine. Innocent children, including an 11-month-old baby in the Bronx catch bullets meant for young men shooting at one another in impoverished neighborhoods.

When bullets do find their intended marks, homicide numbers have been climbing. What is causing this carnage?

According to the previous commissioner of the New York City Police Department, Dermot Shea, the rise in violence in New York City is due to a new law under which judges may not jail people accused of committing misdemeanors or non-violent felonies while they await their trials. Republican leaders in Albany, the state capital, agree with Shea’s assessment.

They are using the crisis of random violence to get something they want: a turnaround on recent reforms in criminal procedure laws. “When anything bad happens, it’s got to be bail reform’s fault,” sardonic Speaker of the New York State Assembly Carl Heastie has commented. Heastie is one of many Democrats who have dug in their heels against repealing this law, even in the face of the gory shootings and bizarre spate of subway shovings leading to injuries and deaths.

Vanessa Gibson is president of the borough of the Bronx, where shootings are concentrated, and the former chair of the New York City Council’s committee on public safety. You might expect her to respond to her constituents’ grieving with a promise to roll back reform, thereby showing responsiveness and decisiveness. Instead, she went on WNYC talk radio and said, “when bail reform was codified in 2020, I think on the ground a lot of residents did not understand what it meant, and they [the politicians] use it … as a reason for the cause of the increase in violence.”

Crisis opportunism aside, what has been the effect of New York’s bail reform? To answer this, first “understand what it meant,” as Gibson recommends.

The Purpose of Bail

When a person is arrested for committing a crime, a judge first decides if that person is likely to come back to court when hearings and maybe a trial are scheduled. If not, the judge requires the person to pay money that will be refunded only when the person appears for the hearings.

Although the Eighth Amendment to the U.S. Constitution states that “excessive bail shall not be required,” by setting financial conditions on release before trial, judges consign poor people to jail before their cases get heard, for their lack of funds. Jails such as the infamous Rikers Island hold more people waiting for their trials and unable to pay the bail—people who have not been convicted of the crimes—than offenders actually found guilty.

To get out of jail, a great many plead guilty quickly, even though they may be innocent, rather than wait long months for their cases to come up. This is especially common among jailed defendants charged with misdemeanors and felony crimes against property, because the punishments for these crimes are much lower than for crimes of violence; defendants agree to plead guilty, which creates a criminal record that can harm employment chances but at least results in release from jail.

The manifest injustice of this system was the target of the new bail law. Since the law took effect in January 2020, only those accused of violent crimes are subject to financial bail.

Furthermore, although other states use various forms of risk prediction for all people accused of any level of crime, New York judges must order “supervised release” for accused misdemeanants and property offenders, unless there is reason to believe they will not return to court, such as a previous failure to appear. Likelihood of committing another crime while on release, or likelihood of becoming violent, are not considered.

Point of Contention: Dangerousness of Defendants

And that’s the point on which the new law’s supporters and critics diverge. Supporters say that the law automatically takes dangerousness into account because judges are free to impose financial bail on anybody accused of committing a violent crime.

Critics respond that even people accused of non-violent crimes might become violent. And, although they seldom say it outright, they apparently believe that constraining poor people who are disorderly, or are thieves, will result in lower levels of serious violence. This is the old, and disproven, “Broken Windows thesis in new garb.

Criminologists look to the statistics. In 2021, how many people released without cash bail committed new crimes while on release? How many of those crimes were violent, and were any of them associated with the horrible murders?

A debate about the numbers as released by the state’s Office of Court Administration has settled on a statistic of about 2%; i.e., about 2% of accused persons released under the new law, including some charged with violent felonies and given “supervised release,” allegedly committed a crime of violence while awaiting adjudication for the original charges.

More to the point, criminologists agree with Heastie in his observation that the only way to know whether more people are re-offending now that bail reform has taken hold is to compare the number of re-arrests before the law passed with those after Jan. 1, 2020. Unfortunately, pre-2020 data are not made public.

Meanwhile, the crisis continues, and it continues in cities around the nation that did not experience bail reform as well as in New York, where bail reform has occurred. There are many reasons that murders are increasing, but bail law is not one of them. Critics of the law who want to get re-elected on law-and-order messaging might realistically make a difference in this ongoing crisis if they instead turned their hard-line messaging against gun traffickers, brandishers, and illegal gun possessors.

A Focused Solution

If the political opponents were willing to meet on middle ground addressing the dangerousness problem while also preserving this needed reform law, a simple fix is available: The bail law could be amended so that illegal possession of a weapon would be a crime for which judges could require cash bail. Presently, illegal gun possession is considered a non-violent felony under the bail reform law.

But New York Penal Law 265.01-b (1) lists gun possession as a Class E felony with a possible 1.5 to 4-year prison sentence. Class E felonies are called “threats to public safety.”

Surely carrying an illegal weapon constitutes a threat of violence in itself, and algorithmic predictions of future dangerousness are unnecessary. Place it in the bail law’s list of dangerous crimes. If opponents of New York’s bail law want to address the current crisis in gun violence, they need do no more than support this focused fix.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Candace McCoy is a professor of criminal justice at the Graduate Center and John Jay College, City University of New York. She has also served as director of policy analysis for the Inspector General of the New York City Police Department. She is the author of “Politics and Plea Bargaining.”