A 2019 study found those convicted of federal firearms offenses were over 20 percentage points more likely to be rearrested for a new crime in the next 8 years than their non-firearms counterparts.
A coalition of lawmakers and law enforcement partners on Wednesday promoted new legislation that would further scale back the cash bail overhaul enacted in 2019 by adding key gun crimes to the list of offenses eligible for bail.
Sen. Elijah Reichlin-Melnick, D-Rockland, emphasized the need to afford prosecutors and judges additional discretion when making custody decisions pre-trial — amid an historic spike in shootings across the country — during a morning press conference.
“The United States is suffering through an incredibly steep rise in gun violence. Shootings and gun homicides are up significantly compared to just a few years ago,” he said, flanked by Rockland County Sheriff Lou Falco, District Attorney Tom Walsh and others. “We cannot stand by at this concerning rise in crime that is overtaking our state as more and more people are getting shot.”
Although the incidence of many crimes decreased during the pandemic, shootings and homicides surged. This was true in cities and states across the country, including New York.
Through mid-May of this year, New York City registered more shooting victims than during any comparable period in the last 10 years. Gov. Andrew Cuomo recently declared gun violence a statewide disaster emergency, allowing law enforcement to ramp up its presence in communities plagued by gun violence and investing in new gun violence prevention programs.
Earlier this month, the state’s court system announced it would devote additional resources to speeding along gun prosecutions in New York City, given the backlog of gun cases during the pandemic.
While many gun crimes are currently encompassed by the new bail laws because they are already considered violent felonies — crimes like unlawful possession of an assault-style weapon or multiple firearms — the bill would add allow prosecutors to seek cash bail for a handful of new charges.
These include the unlawful sale of a firearm to a minor or the purchase of a firearm by someone who knows they are prohibited from doing so. Also included is the crime of failing to store firearms, shotguns, and rifles safely, a class A misdemeanor, adding to a small handful of misdemeanors still eligible for bail under the reform packages.
The cash bail debate
In 2019, New York lawmakers effectively scrapped the state’s previous cash bail system by eliminating cash bail as an option for most misdemeanors and many non-violent felony charges. Cash bail was retained as an option for most violent felonies.
Advocates have long said that cash bail discriminates against the poor and people of color by allowing only those with financial means to return to the community during the pendency of a criminal trial.
However, amid pushback from Republicans and members of the law enforcement community, lawmakers reined in the scope of their reform, adding many offenses to the list of charges that qualify for cash bail, as opposed to mandatory release, under state law.
“These so-called ‘Justice Reforms’ leave much to be desired, those who advocate for and protect the victims of crime were ignored or even worse, never consulted,” Rockland County Executive Ed Day said in 2019, weeks before the first overhaul was to take effect. “Put simply, these changes favor defendants over victims and I find that unconscionable.”
Reichlin-Melnick told The Journal News that predilection toward gun crime was predictive of future criminal activity, arguing that his legislation could serve as a targeted approach to securing public safety.
“These are crimes law enforcement tells us are predictive of people that are involved in gangs or organized criminal enterprises,” he said. “And so these are folks — even if it’s a relatively minor charge that they’ve got them on — [who] are very likely to have additional things out there, and to be up to no good if they’re out waiting on trial.”
He emphasized that the legislation, sponsored by Democratic Assemblywoman Sandy Galef in the lower chamber, would not require cash bail for these crimes, but merely add it as an option, at the discretion of the judge handling the case.
Some research may back these claims about gun violence and recidivism. A June 2019 study released by the U.S. Sentencing Commission found that individuals convicted of federal firearms offenses were over 20 percentage points more likely to be rearrested for a new crime in the following eight years than their non-firearms counterparts.
Reichlin-Melnick is a strong supporter of bail reform, which was “clearly necessary to address major inequities” in the criminal justice system, he said, but he emphasized the need to add “one small and discrete” change to account for the prevalence of gun violence in New York.
Although discussions within his caucus about bail reform remain ongoing, and it remains a highly charged issue within the spectrum of Democratic voices, Reichlin-Melnick said that many of his colleagues support action to address gun crime.
“I think it’s important with all of this to try to break down this narrative of ‘law enforcement versus communities,’” he observed. “Many of the very same people understand that you must have an active law enforcement presence in order to stop and deter crime, and to arrest and prosecute people that commit crime.”
Reichlin-Melnick said that the soonest the legislature could take up the bill for consideration would be after it reconvenes in January.
The impact of cash bail elimination may be difficult to overstate. According to an analysis by the Center for Court Innovation, 84% of all criminal cases prosecuted in New York City in 2019 would have required pre-trial release had the most recent bail reforms been in effect.