Harry M. Clor (1929-2018) was a humble political philosopher and a great teacher.
In New York State, the negative consequences of new bail and remand regulations, which are releasing from custody the vast majority of arrested defendants in New York City, have been severe. Within just days of their January 1 implementation, some of the laws’ most vocal progressive proponents—including the New York City mayor, the state governor, and the state Senate Majority Leader—began publicly registering their second thoughts. The failure of the legislation stems from the fact that its passage emanated from an attempt to serve a progressivist ideology rooted in illogic and a false view of human nature.
New York State’s Bail and Remand “Reform”
As a John Jay College of Criminal Justice research report outlines, among other things, the new criminal justice “reform” laws reduce the charges eligible for the accused to be held on bail and mandate that all alleged criminals by default be released on their own recognizance. In all cases, including the small number of charges still eligible for remand on bail (an estimated 10 percent of criminal cases), judges must release defendants if there is no evidence to suggest that they will not return to court, with circumstances or probable danger to the community disallowed consideration. Further, in cases where a flight risk is deemed probable, courts still must “select the least restrictive alternative and condition or conditions that will reasonably assure the principal’s return to court.” Setting bail and remand in the small number of still-eligible violent felonious categories is possible, but it is not mandatory or even encouraged. As a result, progressive judges and prosecutors are stressing the legislation’s language that in all cases, “the least restrictive alternative” is to be sought and that bail should not create “undue hardship” for the defendant. Such language provides a judge or prosecutor a rationale for releasing people like a man who allegedly assaulted a 65-year-old city bus driver in a violent attack that resulted in seven stiches and a concussion.
Prior to the major disturbances caused by the coronavirus, changes to the law this year seemed unlikely, as activists and some key politicians were mobilized against any commonsense revisions. The virus situation provided the governor with considerable leverage to persuade the legislature to agree to some revisions in the April 2020 budget bill. A short list of new bail-eligible offenses will be added to the law, effective July 2, 2020, including the option for bail to be set for those who commit a felony while on probation or parole. These small revisions, however, will not fix the problem come July. For one, the non-bail-eligible list remains lengthy. Second, the continued claim that all “violent” offenses are eligible for bail is a falsehood if one simply looks at the many violent crimes on the non-bail-eligible list. In addition, judges still do not have the discretion to remand defendants based on risk to society, and the “least restrictive” mandate to judges remains.
Some arguments surrounding bail reform are reasonable, especially those centered on instances when the severity of punishment depends not upon the crime or the defendant’s risk to society, but on the wealth of the defendant. The activists behind the New York laws, however, went well beyond this line of reasoning. These activists were not simply trying to right an injustice using impartial logic and reason, but were drawing conclusions about the pre-existing laws in line with a progressivist ideology that sees the criminal justice system as an oppressor and the criminals as the oppressed. This ideology often places blame on “oppressive systems,” rather than on those who commit vicious acts. The decision to take from judges the ability to detain individuals who pose a threat to public safety, as the 2020 laws do, however, has proved to be irresponsible and harmful to law-abiding communities.
The Justice of Restraint
For thousands of years, political and social thinkers have identified the existence of a certain type of wounded soul whose predisposition is inclined more to vicious acts than virtuous ones.
For Aristotle, the character of an individual is formed by the choices that he makes with regard to how he acts or how he does not act. Aristotle argues in the Nicomachean Ethics that choice “is divided…into the bad and the good.” For Aristotle, “by choosing good or bad things we are certain kinds of people…” (original emphasis).
Similarly, in his Summa Theologiae, Thomas Aquinas argues the following:
But because some are found who are headstrong and prone to vice, and who cannot easily be moved by words, it was necessary for these to be restrained from evil by force or fear, so that they might at any rate desist from evildoing and leave others in peace, and that they themselves, by having habits formed in them in this way, might be brought to do willingly what formerly they did from fear, and so be made into virtuous men. And this kind of discipline, which compels through fear of punishment, is the discipline of the laws.
The purpose of the penal system is too often characterized by criminal system reformers as solely a place of punishment devoid of humane mercy. This characterization ignores the fact that the penal system does serve a requisite good: physical restraint of those who are inclined to hurt others or to disrupt achievement of the common good.
For those inclined to look to neuropsychological theories, continuing research has shown the prevalence of brain differences and dysfunction in sociopaths, psychopaths, and other violent individuals. Other neuropsychology theories contend that, for some criminals, pleasure may be derived from committing vicious acts owing to activity in the dopamine reward system, while still others argue that some might actually form psychological addictions to pursuing vice.
Regardless if one places emphasis on Aristotelian and Thomistic philosophy or on the theories of contemporary neuropsychology, the result is clear: Some individuals are inclined to hurt others—and repeatedly.
Crime committed by potentially good people as a result of severe mental illness is a complex issue outside the scope of this essay, but for those who commit crimes as a result of deficient characters, rehabilitation, which would entail instruction on how to discipline the passions and to make good choices, certainly must be a part of society’s discussion. The New York case, however, was not a matter of reform versus punishment. Rather, the end was simply to be lenient. Leniency can be good in many circumstances, but simply being lenient does nothing to ensure that an individual will no longer act in a certain manner. Therefore, the real frame of the current debate is leniency and release versus restraint.
For contemporary criminal justice reformers, devotion to ideological pronouncements leads to illogical conclusions about human nature, character change, and the likelihood of further criminal activity.
Consider the example of Gerod Woodberry, whom police claim is a serial bank robber. Woodberry was said to have recently robbed four Manhattan banks. Upon being released from jail as a result of the new bail and remand laws, Woodberry is accused of robbing a fifth bank and perhaps a sixth—all in less than two weeks. When Woodberry, who has been convicted five times for bank robberies, was released following the alleged fourth robbery, he is reported to have exclaimed: “I can’t believe they let me out” and “What were they thinking?” After police suspected him in yet at least two more robberies just days later, Woodberry voluntarily walked himself into a police station.
Sometimes, the charitable action is to save people from themselves. For Woodberry, perhaps incarceration—if one is to listen to his own words—would have saved him from committing acts that he naturally knows are wrong. A man like Woodberry, who allegedly committed a robbery less than four hours after one of his recent releases, perhaps knows that he needs saving from himself.
Restraint, in the Interest of the Common Good
After a considerable spike in major felonies within the subway system, a New York City Police Department (NYPD) spokeswoman attributed the increase to “habitual transit recidivists.” These alleged criminals, stated the spokeswoman, “have been repeatedly arrested by our officers, but are issued desk appearance tickets and then commit further offenses.”
Many criminals continue their vicious behavior after being released. A 2018 United States Department of Justice study revealed that 83 percent of the criminals studied went on to be arrested for another crime within nine years of release, and 44 percent of the criminals were re-arrested during just the first year of their release. In fact, only 17 percent of the released criminals were not re-arrested for allegedly committing another crime. (And consider how many of the 17 percent actually did commit a crime but simply were not caught, as well as those who might have committed a crime after the study concluded.)
The statistics can be illuminated by the case of a man charged in three recent, unprovoked, random attacks on New Yorkers. Authorities say that Eugene Webb viciously attacked two random women in different incidences at different times of the day. Webb was arrested the next day, but as a result of the new bail and remand laws, this repeat offender, who has a long history of allegedly attacking innocent women, was released onto the streets the following day. (Webb’s history also includes alleged sexual abuse, and last year he reportedly did not appear for court after being charged with the assault of a woman.) The judge argued that the prosecutors’ request for Webb to be remanded would not “meet the standard” of the new laws. Webb reportedly left the courtroom smiling and just hours after being released was arrested yet again in another part of Manhattan, this time for alleged aggressive panhandling, fleeing from police, and possession of drugs.
There is no evidence to suggest that Webb will change this behavior; rather, there is evidence—his alleged continued lawbreaking—that he will likely continue this activity. Placing individuals like Webb back onto the streets, with possession of such evidence, is unmerciful and unjust to those who may be these individuals’ next victims. Neither the alleged criminals nor their potential future victims are served by this misguided conception of leniency. It is thus logical and just to stop them from committing further harm to others and the quality of life of communities.
The End of Incarceration Is Not Always Punishment
The impact of the new bail and remand laws is beginning to show in official crime numbers. In January and February, crime was up sharply in most categories. When the first four weeks of January showed a significant spike in crime over the same period last year, the NYPD Commissioner publicly attributed the increase to the new bail and remand laws that have released untold numbers of criminals onto the streets. Even the far-left Mayor Bill de Blasio has come to say that he agrees with the commissioner that the rise in crime is likely attributable to the new bail and remand laws.
The strikingly sharp increase in crime for the first two months of the year was interrupted by the virus situation, making year-to-date data now unrepresentative. Since the beginning of March, New York City has been under various stay-at-home, physical distancing, and decreased capacity orders, with the city very nearly shut down save for the most essential of businesses. Even so, for the first four months of 2020, crime is, astonishingly, still up compared to last year. Many categories have seen increases (including a year-to-date nearly 65 percent increase in car thefts, which the NYPD is attributing to the bail and remand laws), all while arrests and the issuance of summonses have dropped significantly.
Every human being makes mistakes, and every human being who makes those mistakes is redeemable. As one sees in the teaching of Aristotle and Thomas Aquinas, however, there are some individuals who desire neither to stop making those mistakes nor to be redeemed. In these cases, the penal system serves a definite good: restraint of the vicious. Contrary to the arguments of progressives and some other contemporaries, the penitentiary system and the criminal justice system are not solely aimed at punishment for crimes already committed.
The incidents in New York State following the new bail and remand regulations, implemented alongside a blanket of progressivist mindsets among New York’s district attorneys and judges, serve as an unfortunate impetus for dialogue regarding the benefits derived from restraining the vicious in a society swayed by an incredibly hostile and illogical ideology that finds some of its heroes among those in need of salutary restraint. Discussions on rehabilitation and reforms to make the justice system truly just for all of the accused regardless of personal wealth should continue. However, society must be wary of fashionable ideologies that attempt to characterize the penal system simply as an oppressive establishment. In every age, there are human beings who simply have no desire to change their characters and seek the good. Restraining these individuals from committing further harm is not oppression, but rather a service to the common good.