New Year’s resolutions are notoriously difficult to keep, and it appears that criminal justice is no exception. Only in effect for a matter of days, New York’s law restricting cash bail to the most serious violent offenses is already at risk in the face of strident opposition that can now trade hypothetical scenarios for cherry-picked tales of especially nefarious flesh-and-blood defendants.
While repealing the law would be a mistake, so too would be continuing to ignore the same fundamental flaw it shares with many of its critiques: a preoccupation with “violent crime.”
The intent behind the new law was to address the inequitable pretrial outcomes and unnecessary detentions that plagued New York’s cash bail system. Highlighted by high profile cases such as those of Kalief Browder and Harvey Weinstein, the original system’s reliance on money as a proxy for risk resulted in a decidedly imperfect ability to tie pretrial release decisions to a defendant’s conduct rather than to their financial status. Lawmakers sought to remedy this problem by eliminating cash bail in an estimated 90 percent of cases involving an arrest.
The devil, of course, is in the details. The law achieved its dramatic reduction in cash bail by restricting its use almost exclusively to those offenses deemed a “violent felony offense” under New York penal law. The problem, as opponents quickly pointed out, is that this definition does not match with popular notions of violent offenses. It misses, for example, crimes like vehicular manslaughter. On the other side of the ledger, someone can be charged with a violent felony offense even if their actions had no direct connection to a violent act.
And even if the definition of violent crime perfectly captured every offense that ever involved violence, it would still be a poor basis on which to guide bail decisions. In New York, the dangerousness of the defendant may not factor into pretrial release decisions. In light of this law, maintaining cash bail for violent offenses looks an awful lot like a back door attempt to allow judges to detain dangerous individuals. If New York wants to add a public safety factor to bail determinations, legislators owe it to their constituents to be transparent. Continuing to use cash bail as an indirect means of detaining dangerous people is unfair and not always effective, given that the dangerous rich may still go free.
What’s more, labeling an offense as violent or nonviolent does not actually impart much meaningful information. Violence operates on a sliding scale — a push is a world apart from a killing spree, for example — making its mere presence unhelpful without additional context. Furthermore, violent acts are not synonymous with danger to the public. It is hard to see how the above-mentioned push puts the public at greater risk than another Bernie Madoff, for instance. It is for some of these reasons that many of the violence-centered critiques of the new bail law fall well short of insightful analysis.
Focusing too much on violence in the context of cash bail does not make for good policy. Putting undue weight on the perceived violence of the alleged offense will necessarily shrink our consideration of equally or more important factors, such as the odds that the person will reoffend. Bail determinations then become too much about what is alleged to have happened rather than what is likely to occur in the future.
Neither repeal nor a stubborn assertion of the law’s flawlessness is an especially productive way to proceed with New York’s bail system. The old cash bail status quo in New York was in desperate need of the 90 percent trim that the law accomplished. Yet that does not erase the need to amend the law to ensure that the remaining 10 percent of cases are the right 10 percent. But for that, the discussion needs to move away from violent crime, not toward it.