Decades ago, political candidates supported the death penalty to tell voters they were serious about stemming violent crime. Looking back at the patterns of public disorder which crested nationwide through the 1980s, then fell through the 1990s and into the 2000s, it seems the capital punishment question was never a real factor.
Today, “bail reform” becomes the most-charged buzz-phrase in a difficult debate over crime policy. It is used as an emotional but imprecise catchall in news reports and political campaigns to describe either a striving for more fairness and correction of racial disparities or a bad law enforcement policy that allows some serious offenders to walk free when they should not.
Getting past a damaging era of over-incarceration all over America — while confronting a steep upswing in violent crime — is creating a hard political divide. On one side are those who cynically deride New York’s 2019 curbing of cash bail and other reforms as a wholesale surrender to criminal behavior. Opposing them are progressive legislators and influential social justice organizations so committed to recent changes that they might resist any reasonable public-safety measure as a sop to repression.
Somewhere between these poles sits common sense — and the plain fact that serious crime has bounced back and a sense of insecurity prevails.
Disorder has many causes, visible nationally. The news is full of incidents where those suffering from mental illness attack people on streets and, most horrifically, on trains and subway platforms. Gang shootings and assaults have escalated. So have nasty robberies, random mayhem, and blatant theft — all of which, if ignored, sends a signal of indifference from those in authority.
Something clearly must be done. The challenge is whether Albany can agree on that something, and get it done quickly. Fast and appropriate action on the streets can give officials time to develop measures against the glaring problem of mental illness while allowing deincarceration initiatives a chance to succeed.
Gov. Kathy Hochul supports measures that include bail-reform revisions. At the same time, she cites official numbers that indicate bail reform hasn’t been the main driver of the crime spike.
According to the NYPD, the percentage of shooting arrests in New York City where the released defendant had an open felony charge has hovered around 25% for years. That figure crept up, from 24% in 2019 to 28% in 2021. That’s not a big percentage increase but as crime has shot up, so has the number of incidents that fall into that category. Making more gun-related offenses bail-eligible, as Hochul suggests, could help.
Certain gun violations, hate crimes, and subway crimes should be subject to arrest rather than just a desk appearance ticket.
Then there’s gun trafficking. Currently 10 guns must be involved for someone to be charged with a class B felony; a pending bill would reduce that number to three.
Changes of this kind merit enactment, and would not abrogate reform. But given their stated inflexibility, powerful Democrats in the Assembly and Senate will need to be prodded and pushed to make effective changes. The current budget talks are an appropriate time for Hochul to exercise leverage.
BAD SIDE EFFECTS
The state’s experience with a 2017 reform that raised the age of criminal responsibility to 18 suggests harmful side effects, stemming from the influence of older criminals. State figures showed a jump in juvenile gun arrests from 174 in 2018 to 439 in 2021. The bad guys know the deal; sometimes youths are given weapons to “hold.” Hochul calls it “astonishing” that giving or selling illegal guns to minors is currently not even bail-eligible. Judges should have more discretion to impose restrictions on minors specifically in gun cases.
It would have been better if legislators in the 2019 changes had faced up to the matter of keeping the most potentially dangerous people behind bars, as New Jersey did, by giving judges proper discretion where warranted. Ultimately the choice of remanding, setting bail, or releasing people on recognizance should take criminal history and past firearm use and possession into consideration. Any move in that direction this Albany session would be welcome.
Some of the concern ascribed to broad bail reform changes is really about the discovery process once a prosecution gets underway. For example, a case can be dismissed when the prosecution fails to turn over to the defense any document — even if its contents are provided in a different form.
Perhaps most importantly, the governor would also change the statutory standard for involuntary commitment, as the administration phrases it, “to apply to individuals who pose a danger to themselves through self-neglect.” Professionals can’t help in the most difficult cases without custody and appropriate facilities.
Hochul acknowledges her proposed revisions “won’t suddenly reverse the rise in violence.” True enough. Mental health treatment, education, guidance for the incarcerated, alternatives to lockup, recovery from pandemic traumas, and safe shelters are worth the effort and expense.
But lawmakers should know that New Yorkers need to get safely through the day. Constitutional enforcement actions can still stop a visible spread of lawlessness and disorder.
MEMBERS OF THE EDITORIAL BOARD are experienced journalists who offer reasoned opinions, based on facts, to encourage informed debate about the issues facing our community.