the city politic

Judges Can Be Dangerous, Too

Setting bail based on “dangerousness” comes with its own perils.

Photo-Illustration: Intelligencer. Photo: Johannes Schmitt-Tegge/picture alliance via Getty Images
Photo-Illustration: Intelligencer. Photo: Johannes Schmitt-Tegge/picture alliance via Getty Images

Opponents of bail reform — including Mayor Eric Adams — keep insisting, despite abundant evidence to the contrary, that battling violent crime requires giving judges the power to size up defendants at arraignment and decide on the spot who should be considered “dangerous” and tossed in jail before trial.

It is always startling when people say the quiet part out loud. We’ve reached the point where some are openly advocating for an entire class of people — you know who — to be summarily stripped of the right to be treated as innocent until proven guilty.

“We must allow judges to take dangerousness into account,” Adams said at the release of his blueprint to end violence in January. “New York is the only state in the country that does not allow a judge to detain a defendant who poses a threat to the community. Forty-nine other states, as well as the federal government, allow judges to consider a defendant’s dangerousness,” he said. “New York must catch up. Judges must be able to evaluate a defendant’s criminal history and the circumstances of the alleged crime to detain those individuals who pose a threat to the safety of the community.”

In reality, New York has already tried this idea. For years, judges employed a de facto “dangerousness” standard at arraignments by demanding bail in amounts they knew defendants could not afford, resulting in thousands of people jailed and subjected to punishment without trial for days, weeks, or months, or — in a few cases — years.

In 2016, according to a study by the Independent Budget Office, “the mean bail set for those unable to post bail immediately was $39,163 and the median bail was $5,000, indicating that for half of these individuals bail was $5,000 or less.” Over the course of that year, more than 35,000 people — 72 percent of all people arrested — were detained because they couldn’t come up with bail money.

This backdoor version of the “dangerousness” standard was frequently abused. It is a big part of why bail reform was needed in the first place.

The notorious case of a Bronx teenager named Kalief Browder is a prime example. Held on $3,000 bail for allegedly stealing a backpack full of valuables, Browder languished on Rikers Island for more than two years, appearing before nine different judges, none of whom took the time to bring the case to a resolution or drop the bail requirement and send the young man home.

Charges were eventually dropped when it became clear that prosecutors had no evidence, no witness, and no case, but the damage had been done. Family members say that Browder’s traumatic ordeal, which included beatings by correction officers and other inmates, contributed to his later suicide.

One of the judges who heard the case, Darcel Clark (who is now the Bronx district attorney), had Browder in her courtroom six different times between November 2011 and June 2012. When I showed her the logs a few years later, she didn’t even remember the case.

“Honestly, I cannot say that I remember it. I mean, I was there for 13 years. I sat on a lot of cases,” Clark told me, adding that “no one should have to sit in jail for three years on a robbery case, or any type of case.”

Giving even more power and discretion to judges who are too overworked, distracted, or disinterested to properly assess cases would be a catastrophic mistake and add little to public safety. To date, the court system has not taken an official position on how, or whether, judges should have the level of discretion suggested by Adams.

“While we haven’t taken an institutional position, nor had any discussions on bail reform, the chief administrative judge opined at the annual budget hearing in Albany earlier this month that what the vast majority of judges with criminal jurisdiction would want is to have the most information before them, to include a defendant’s past criminal record along with the facts and circumstances of the immediate case before them,” says Lucian Chalfen, a spokesman for the Office of Court Administration. “While no judge is expected to be Nostradamus, neither should they have to try and be.”

Letting overworked judges speculate about “dangerousness” also opens the door to possible bias. In the 1990s, a study of bail decisions in Connecticut found that judges set bail levels 25 percent higher for Black defendants than for white defendants in similar cases.

A 2018 study found that “black defendants are 3.6 percentage points more likely to be assigned monetary bail than white defendants and, conditional on being assigned monetary bail, receive bail amounts that are $9,923 greater.” And as recently as 2020, a study of city data published by the University of Chicago found that “approximately two-thirds of the average release-rate disparity between white and Black defendants in New York City is due to racial discrimination.”

So state legislators were more than justified in telling Adams that implementing a new “dangerousness” standard for setting bail isn’t likely to happen.

“We had a good conversation,” State Senate Majority Leader Andrea Stewart-Cousins told me shortly after Adams left the statehouse on Monday. “We talked about a wide variety of things. He talked about his vision in terms of public safety. And we talked about our journey to the work that we’ve done. We talked about the engagement that we’ve had with stakeholders, as well as what we were trying to achieve. And I think that it kind of level-set, and I think we’ve all agreed that we need more data.”

That’s a tactful way of saying that skeptical lawmakers will need a lot more research before changing the bail laws. Because allowing judges to punish people before they’ve even had a trial would be, well, dangerous.

Judges Can Be Dangerous, Too