The National Review has never been more than a pseudo-intellectual outpost, the sort of outlet that confuses aristocratic affectation with substantive thought. But the standards over there have fallen even from the middling heights of past decades with every article following a paint-by-numbers scheme of “trolling claim-straw argument-misapplied statistic-repeat.” At this point the only value to the magazine is in teaching students how to dissect bad math.
Take the latest article from John Jay emeritus professor Barry Latzer ripping New York’s bail reform law. While even supporters of the law’s aims have identified problems in the existing law, which attempts to mirror New Jersey’s bail system — one that has accompanied lower crime rates — those complaints primarily focus on implementation questions and tensions with other areas of New York law. Latzer, a criminologist and a Fordham trained attorney disagrees with the fundamental premise of the law and has all the bad math to prove it!
While New York law directs arraignment judges to focus on the likelihood of return when ruling on release, it does not provide for an assessment of the risk of nonappearance. This is especially puzzling, as the New York City Criminal Justice Agency (CJA), which screens virtually every arrested person in the city, provides a fairly accurate assessment of the risk of release. Where CJA recommended release only 7 percent of the discharged defendants failed to appear. That’s a 93 percent success rate.
“Focus on the likelihood of return” but not “the risk of nonappearance”? That is “puzzling” since those are functionally the same. But the real mischief comes when he cites the 93 percent CJA success rate. As a statistic, it reveals that CJA does a decent job of preventing bail skipping. What it doesn’t reveal is whether or not CJA does a good job of keeping folks out of jail who would reappear anyway. As it happens, the CJA would actually agree with this assessment and has pushed successful pilot programs more in line with the bail reform law. One CJA-inspired pilot program for ditching cash bail in Queens resulted in an 87 percent return rate. There’s not a great reason to think the 6 percent gap between the pilot program and the city’s overall numbers would shrink if applied to more areas though Latzer doesn’t even try to confront that hurdle since he ignores the Queens program entirely.
Why structure the law this way? Probably to head off public outrage if the most obviously violent felons, VFOs, had to be compulsorily released. But if public safety were the main concern then why not let judges make release decisions on a case-by-case basis, and why not let them take dangerousness into account the way judges do in nearly every other state? On the other hand, if promoting court appearances is the goal then why exempt violent felons from the release edict? The data show (anomalous as it may seem) that violent felons are among the least likely to abscond.
What is the answer to the question nobody asked? The new law is structured this way because the goal is to avoid wasting jail space (and, as the CJA notes, avoiding the stigma that results in “people who are detained [being] far more likely to be convicted and sentenced to incarceration“) on dudes picked up selling pot in the park. The existing bail system was working relatively well for violent crimes. This isn’t even a point anyone would quibble with if Latzer didn’t need an “inflammatory straw claim” to complete his National Review Mad Libs.
In 2018, before the law went into effect, 87 percent of New York City misdemeanor arrestees were released. Presumably, the remaining 13 percent will be ROR’d as the law takes effect. In sheer numbers this will be significant since misdemeanors represent nearly three-quarters of all arraigned cases. Judging by data from recent years, we could see an additional 23,400 misdemeanants released in 2020. And that number is for the Big Apple alone; it doesn’t include the thousands of upstate offenders.
So? The 156,600 “misdemeanants” (and for what it’s worth, that word technically means someone convicted, which these folks wouldn’t be pre-trial) that were released — many on cash bail — weren’t posing a significant threat in one of the safest cities in the country. The relevant statistic when discussing public safety is how many of those detained were not offered cash bail as opposed to those who simply couldn’t afford it. Because if those in the 13 percent were no different than the 87 percent except poorer, then these aren’t really an illuminating numbers.
The statute prohibits judges from demanding bail for nonviolent felony defendants or sending them to jail, even though their crimes may be serious, and even if they have records of numerous failures to show up for their court dates. Going by past figures we are speaking of roughly 12,000 felony arrestees who would have been jailed or released on bail under the old rules.
Note there are no numbers for “their crimes may be serious” or “numerous failures to show up.” These are just assertions thrown in to poison the well before the next misapplied statistic. “Going by past figures we are speaking of roughly 12,000 felony arrestees who would have been jailed or released on bail under the old rules.” But most of these folks would have been released if they had the money. The relevant statistic for public safety would, again, be the number of defendants in this category who were denied bail. Latzer doesn’t provide this figure because it wouldn’t be sufficiently alarming. As for the flight risk concern, his unwillingness to consider empirical data from either the Queens program or New Jersey’s experience undermines the assertion that 12,000 criminals would run rampant without cash bail.
Look, there are good reasons to seek changes to the cash bail reform law, but throwing around these misleading stats doesn’t advance any of them. With lawyers this bad at numbers, maybe it’s a good thing NY isn’t using a complicated bail formula anymore.
New York’s Bad Bail-Reform Law [National Review]
New York’s Upcoming Bail Reform Changes Explained [Brennan Center]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.