Don't blame bail reform for random violence

A few weeks ago, a woman exiting a New York City subway station was punched in the face by a stranger who then fled into an oncoming train. She was in immense pain and shock. Police were called. Bystanders provided emotional support while she tried to figure out what had just happened. Her story, sadly, is not uncommon.

The bewildering thing about such random acts of violence is that the perpetrator, if caught, often turns out to have a prior history of similar violent acts. City police point, unsurprisingly, to bail reform as the crux of the issue — they keep catching and releasing the same few perpetrators.

But their anger at bail reform is unqualified and misdirected. Rather, the problem rests with the lack of judicial discretion: New York is the only state in the country that strips a judge’s ability to set bail on people considered a "danger to the community" if they’re brought in for a non-bail-eligible offense.

Bail reform is a good thing. In New York City, it has effectively reduced pretrial incarceration rates without leading to a substantial increase in crime. This means that fewer people, particularly from marginalized communities, are being held in jail simply because they cannot afford bail.

But bail reform has also whittled down judicial discretion. Under New York’s current model, setting bail is not an option for judges without first being presented with a bail-eligible offense, which generally only include violent felonies, sex offenses, and hate crimes. The judge may not consider public safety nor assess the person’s risk of being rearrested when determining their release status. These elements — often called "danger to community" considerations — were scrubbed away with very real consequences.

That's what happened with the man suspected of punching Mikayla Toninato, breaking her jaw, and causing her to lose three teeth. He was arrested, charged with misdemeanor assault, and released.

Not allowing a judge to consider dangerousness when determining a person’s release was a highly-contested choice to preserve the presumption of innocence and reduce racial bias. Those who argued against it believed it meant replacing cash bail with a system just as — if not more — susceptible to racial bias. But they are mistaken.

Pretrial release always has required a judicious balance between the presumption of innocence and some other factor — risk of flight, ties to the community, public safety. Even in its most watered-down form, judges make preliminary factual determinations about a person that indicate that they may flee, while still presuming the accused is innocent. New York's reforms created a blanket policy that overlooks the distinctive attributes of each case, making that balance difficult. The rise in random acts of violence is one consequence. The harsh reality is that some people are dangerous and the current model does not allow judges to consider this risk.

The law does not need to be rewritten. Simply allowing judges to consider dangerousness could significantly improve public safety outcomes. Under a model similar to other states, the judge could consider a pattern of violent behavior, recognize the clear danger a person poses to others, and set bail to prevent further harm. This approach allows for a more nuanced response, enhancing public safety while protecting progress made through bail reform.

New York's language should be expanded to include a broader consideration of dangerousness for any person charged with a crime, rather than catching and releasing in perpetuity.

This guest essay reflects the views of Michael Wetmore, visiting professor at Albany Law School and former assistant district attorney in Albany County.