Right on Crime Wrong on Crime- New York Edition

 

This is the second article in a series entitled "Right on Crime Wrong on Crime."  This series seeks to review the history of positions taken by Right on Crime/TPPF to see how their positions have held up to the test of time. In this edition the focus is New York's 2019 bail reform law.

In 2015, Marc Levin, the director of Right On Crime, a conservative criminal justice think tank, told MSNBC, “So I’m pleased with New York’s initiative [for bail reform] and it’s certainly consistent with what we’ve been advocating.”  To see the original article CLICK HERE.

In 2019, New York enacted major bail reform that went into effect on January 1, 2020 right before the start of the COVID-19 pandemic.  The statute set out a list of crimes in which the trial court was required to release a defendant without bail.  This form of release is referred to as "Simple Release" where the defendant is not required to give any security that he or she will appear for court other than their personal promise.  In Texas, a similar sytem is currently being used in Harris County for misdemeanor defendants.  In Harris County, unless the defendant is charged with one of seven misdemeanors, the defendant is released on a $100.00 PR bond and never sees a magistrate.  

In New York, within a short time after the implementation of the reforms, it was clear that they were not working.  Crime began to increase.  Politicians had to acknowledge that the only changes had been the bail reform laws.  Therefore, many agreed that the reforms were causing crime to increase.  As a result, even during the middle of the pandemic, the New York Legislature rolled back a portion of these reforms.

Currently, the New York legislature is debating further roll backs to their bail reform law as crime has continued to increase and judges and law enforcement blame the bad bail reforms as the cause.

Right on Crime holds itself out as the resource for conservative "reform" to the criminal justice system.  Right on Crime was engaged in the debate of the New York bill.  This is from an article published on September 24, 2020:

"Meaningful efforts to address money bail and pretrial detention are underway in many parts of the country—and have received bipartisan support," said Marc Levin, the Chief of Policy and Innovation for the Texas Public Policy Foundation and a founder of the Right on Crime initiative.

Just focusing on the nature of the offense is “not as predictive of somebody’s risk to public safety, or risk of absconding as looking at a host of other factors,” he said.

“I hope that at the end of the day, people will put aside their regional differences, and just focus on the fact that the system as it’s used across the country still relies in large measure on people’s ability to pay.”

Levin said New York’s reform efforts were part of an uphill battle across the country.

“Until we substitute [bail] for something that’s more rational, that really focuses on public safety, due process and the presumption of innocence, we’re going to continue to have both legal challenges and suboptimal results.

To see the original article CLICK HERE.  

In the months after New York's reforms went into effect, Marc Levin of Right on Crime was on a panel touting New York's new law as an example of bail reform that could be implemented across the country.  To see panel discussion CLICK HERE.

The video is also embeded in this article-

The video demonstrates that Right on Crime has taken many of the arguments of the left to support criminal justice reform and has repeated them as arguments advocating that conservatives should also support them as well.  In the panel discussion set out above, Marc Levin from Right on Crime noted that the New York law was starting to come under some criticism. He described the criticisms as pure politics.  Further, Right on Crime also advocated for the use of a risk assessment tool even though groups across the country already were withdrawing their support for them.

Once again, Right on Crime failed to provide the analysis of the bill that should be expected from a group that holds itself out as a resource for criminal justice reform issues.

This is not the first time that Right on Crime has come under criticism for adopting the arguments of the left and being accused of failing to advocate for true conservative criminal justice reform.

In August 2021, Sean Kennedy wrote an op ed published in the Washington Examiner criticizing Right on Crime/TPPF.  Mr. Kennedy is a public policy expert focusing on crime, justice, and urban policy. His work has appeared in the Wall Street Journal, the Washington Post, City Journal, CNN, and the Chicago Tribune, among others.

It began with the Texas Public Policy Foundation, led by then-President Brooke Rollins. The right-leaning think tank had an idea for budget-conscious Texas legislators: Close prisons, divert the offenders to less costly programs, and save millions. Texas did, closing 10 prisons and actually spending less, adjusted for inflation, than it did in 2005. The prison population fell, while Texas added 7 million residents.

Suddenly awash in cash from the libertarian superdonor Koch brothers and their network, the TPPF’s Right on Crime project and its allies took their show on the road.

The pitch was alluring. By getting “smart on crime” by slowly and invisibly ending the drug war, sending offenders to treatment, and forgiving youth-age crimes, the Texans persuaded rock-ribbed Republicans that it was financially prudent and politically shrewd.

The best part of the whole gambit was that it appeared to be working. Crime was in a free fall. From 2005 to 2019, violent crime in the Lone Star state dropped by 25%. But, crucially, it did that everywhere; that did not stop the reformers from tooting their own horn — and getting glowing press coverage.

But it was a mirage. Just like the rest of the country, Texas’s violent crime, especially homicides, spiked in 2015 and 2016 and stubbornly refused to disappear.

The strange bedfellows of right-left criminal justice reform rolled on. As the Koch network built up Right on Crime and gained a foothold in conservative establishment organizations such as the American Conservative Union, Soros & Co. ran a parallel funding operation. They viciously opposed one another on everything from energy and education to tax policy, but they found common cause on criminal justice. 

To see the original article CLICK HERE. 

The arguments supported by Right on Crime in New York suffered from two failures.  First, it appears that Right on Crime took some of its positions based solely on its opposition to the private bail industry.  This position blinded the group from its core task of providing analysis of proposals.  Therefore, the group did not seek to build off what works; but instead argued to replace a system that worked with something unknown.  As a result, New York made the system substanitally worse than it was.

The reforms in New York took discretion away from judges.  So long as the defendant was charged with a crime on a list of charges, the defendant was to be released without bail.  This system is referred to as "simple release."  This type of release system has been a failure everywhere it has been attempted.  This should have been noted.  Also, not allowing trial courts the discretion needed to address careeer criminals, organized crime or gang members for these offenses (no matter how many times they are arrested for such an offense) logically would lead to criminals seeing this as a green light to commit more crime.  This was also not noted.  Right on Crime had no problem with this.  In fact, when stories started appearing criticizing the law, Right on Crime maintained that the stories were just a political push back.

The second failure of Right on Crime was not having a proven or workable alternative form of release on which to advocate for once it opposed the private industry.  So Right on Crime decided to argue to replace an industry that has been in existence for over 200 years without have anything to replace it with but a failed "simple release."

So why is this important in Texas?  In Harris County, a county commissioner invited an activist plaintiff attorney to file suit against the county alleging that the county's use of a bail schedule violated procedural due process.  A federal suit was filed and the Honorable Judge Lee Rosenthal held that the misdemeanor judges could be sued as county policy makers.  Even though the Fifth Circuit held that bail in Texas was substantively constitutional and that the use of a bail schedule was proper if certain procedures were put in place, the county entered into a settlement that scrapped the use of bail schedules and replaced them with "simple release" for most misdemeanors in Harris County.  The Harris County version is slightly different than but also similar to the system used in New York.  In Harris County,  a misdemeanor defendant is released on a $100.00 PR bond and never sees a magistrate.  Also, the county agreed that a defendant must miss court  more than 3 times before the county can do anything about it.

But the results in Harris County have been the same as in New York.  Crime has increased dramatically.  Consequently, the Texas legislature passed SB6 requiring major bail reform including a mandate to review a criminal history before anyone charged with  a Class B misdemeanor or higher is released from jail.  The requirement that a criminal history be reviewed before setting bail goes into effect on April 1, 2022.  Additionally, in January 2022, the 5th Circuit issued an opinion in Daves v. Dallas County wherein the court of appeals reversed the central holding that Judge Rosenthal made in Odonnell concluding that a federal court has no jurisdiction over the county court judges or the county.  As a result, Harris County is not following Texas law as set out in SB6 and is no longer  following the case law as set out by the Fifth Circuit.  Harris County appears to want to be a land of its own doing only what it wants, hiding behind a "consent decree/settlement agreement" entered by a court that in all likelihood did not have jurisidicition to enter it or to hold anyone in contempt for not following it.

Right on Crime was wrong in advocating for New York's bad bail reforms.  These bad bail reforms  spread to Texas through Harris County.  It is hard to see this series and not conclude that on the issue of pretrial reform, Right on Crime/TPPF has essentially "adopted" the proposals made by far left wing groups (some funded by Soros) and claimed that these same arguments should be supported by the right.  Right on Crime has not advocated for true conservate reforms on the issue of bail reform or pretrial release.

Other Articles in the Series:

Part 1- Right on Crime Wrong on Crime- California Prop 47.  To see more CLICK HERE.