In New York City, Mayor Eric Adams wants to crack down on crime. And the state’s bail system, which both criminal justice advocates and lawmakers have worked to reform in recent years, has been one of his focal points.
Within Adams’ recently-released gun violence blueprint—which primarily addresses law policing strategies for addressing crime and gun violence—a key section focuses on bail laws, and reforms made to them in New York in the past few years. (Many of these reforms have since come under sustained criticism from the law enforcement community; some have already been rolled back.) Alongside other criminal justice proposals, Adams calls for a law to be implemented where judges are allowed to take a defendant’s “dangerousness” into account when deciding on if bail is to be offered.
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This means that a judge would have the right to detain a suspect during their arraignment based on a perceived level of risk or danger that they might pose to the public. Currently, judges consider a variety of factors when deciding on bail, including the current charges, criminal history and financial circumstances of the defendant.
“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. 49 other states, as well as the federal government, allow judges to consider a defendant’s dangerousness,” the blueprint says. “New York must also meet this common-sense standard.”
But all too often a significant level of prejudice—the result of wider socio-cultural biases—can influence assessing “dangerousness” in its own right. It is a metric that is challenging to assess objectively, and there are concerns that such assessments would disproportionately impact people of color. A greater focus on “dangerousness” during the arraignments process, activists argue, could also force judges to make assessments of whether or not a suspect is guilty, which is not supposed to happen until their trial.
“When you talk about dangerousness you’re begging to bring more racial bias into the system. [When] Black folks are accused of a crime, our guilt is assumed,” Scott Roberts, the Director of Criminal Justice Campaigns at Color of Change says.
“[Law enforcement professionals] believe adding dangerousness will empower them to do their jobs more effectively,” adds Carl Hamad-Lipscombe, executive director of Envision Freedom Fund, a New York City bail fund.
In this vein, Adams’ position seems to be that such proactive policing and carceral strategies—that by granting fewer people bail, more potentially violent criminals will be kept off the streets—will lead to a decrease in the shooting incidents and murders that have been on the rise in New York City over the past couple of years.
But there is little evidence to suggest that the rise in crime, which has been apparent across the U.S. throughout the COVID-19 pandemic, is the result of more people being released on bail. According to a 2021 report from the NYC Mayor’s Criminal Justice office, pretrial rearrests have remained consistent since the start of implementation of the bail reforms Adams hopes to roll back.
“Fewer than 1% of the 45,000- 50,000 people out pretrial are arrested for nonviolent or violent felonies each month,” the office’s December 2021 report says.
“Issues with violence and the murder rate now cannot be blamed on bail reform. They can be blamed on structural racism and structural disadvantages and a refusal to solve crime at its roots,” Ashley Nellis, a senior research analyst with the Sentencing Project, says.
There are experts who support the idea of using “dangerousness” as a factor in arraignments court, but in many cases, their main argument is that it shouldn’t be the responsibility of individuals (especially those involved in the court system) to make the determination.
Richard Berk, a criminology professor at the University of Pennsylvania, has worked extensively studying criminal risk assessment processes. He uses a “hand-tailored” algorithm-based machine that is “more accurate, more transparent and more fair” when forecasting re-arrest potential in his work. One of Berk’s programs is running in the Philadelphia Department of Probation and Parole, though the city has not released details about how it is working as of January 2022, and the department did not immediately respond to TIME’s request for comment.
“These algorithms are also very feasible to implement,” Dr. Berk says, arguing that obstacles for putting them in place are largely “ideological and political.” To this point, critics say the use of algorithms is too new and could still include levels of racial bias.
“We want to think that there is a way that you can enter in a bunch of variables and factors and kick out a risk assessment,” says Ashley Nellis, “[but] there is research out there that says we shouldn’t jump in with both feet just yet. Scott Roberts, of Color for Change, calls the data itself “racist.”
(Berk told the New York Times in 2020 that the algorithm does not use ZIP codes or another type of locational data that could be related to race.)
In New York, lawmakers have pushed back on the idea of implementing a “dangerousness” metric, citing similar racial bias concerns. The proposed law was rejected in 2019 and again in 2020. During a Feb. 9 meeting, New York assembly member Latrice Walker told Mayor Adams that it was wrong to insinuate that criminal justice reform is “harming our city.”
“It is something that we need to discuss as elected officials and not in six-second bites in the media,” Walker said during the meeting.
Read more: America’s Policing System Is Broken. It’s Time to Radically Rethink Public Safety
That being said, Hamad-Lipscombe says “you never know” when it comes to politicians.
“If the narratives that violence is on the rise continues and Mayor Adams has the police officers and the unions’ ear, who knows what that could bring,” he cautions. Manhattan District Attorney Alvin Bragg has, for example, been criticized by some—including Adams—as “soft-on-crime”, particularly with regards to certain offenses he said he would not charge, and his stance to make “tweaks” to bail reform.
Activists say the focus should be on such “tweaks,” like continuing to decriminalize low-level and non-violent offenses which primarily impact minority and marginalized populations.
“We have to address why we keep bringing Black and brown people into the criminal justice system [for minor crimes]. That’s the root of the issue,” Nellis says.