Why the dangerousness standard is racist

All people of good will should stand with New Yorkers in wanting to curb the increase in gun violence that has caused devastating loss and fear for too many families and communities. Keeping our neighborhoods safe is unquestionably an urgent priority. That said, Mayor Adams’ new blueprint to end gun violence, including his calls for bail and discovery reform rollbacks specifically, won’t achieve that goal. Instead, it will reinvigorate a system of mass incarceration of Black and Brown New Yorkers by rolling back reforms that have helped to equalize the administration of justice in New York City.

Just two years ago, a coalition of advocacy groups led by people who are directly affected by the criminal legal system won significant improvements to pretrial justice in New York, including bail reforms to reduce unnecessary pretrial detention and discovery reform to bring New York in line with the majority of the country in ensuring that people charged with crimes can make informed decisions about the exercise of their constitutional rights.

Now, Adams wants to introduce a “dangerousness” assessment to the bail law. But because race often operates as a proxy for criminality and dangerousness, such an analysis will increase racial disproportionality and expand the incarceration rate at a time when policymakers are working to reduce the number of people in jail and our country is reckoning with the arbitrary role of race in the administration of justice.

What do I know about race and dangerousness? I argued a case about it in the United States Supreme Court. My client, Duane Buck, was condemned to death after an expert testified that he was more likely to commit criminal acts of violence in the future because he is Black. This testimony responded to a Texas law that made a finding of future dangerousness a prerequisite for a death sentence.

The Supreme Court vacated Buck’s death sentence. In an opinion authored by Chief Justice John Roberts, the court acknowledged the “powerful racial stereotype — that of Black men as “violence prone,’ “denounced the “noxious strain of racial prejudice” that infected Buck’s case through the dangerousness testimony and declared that “our criminal law punishes people for what they do, not who they are.”

We should not invite these kinds of evaluations into New York’s bail determinations. They will not make our justice system better or our communities safer. Instead, such an analysis will further entrench discrimination into our criminal legal system. Even without explicit dangerousness assessments, New York City judges were 50% more likely to set higher bail for Black people accused of violent felony charges than for similarly-situated white people facing identical charges.

What about discovery reforms? The 2019 changes to the law ensured that people charged with crimes have broad and open access to information about the charges against them — including evidence that shows that they are innocent — before a plea can be taken and well before trial. These laws strengthen the integrity of our criminal court outcomes, including by reducing the incidence of prosecutorial misconduct such as concealing exculpatory evidence. Adams now wants to roll back these discovery reforms to allow “district attorneys to move forward earlier with gun charges.” But speeding up weapons prosecutions while denying the defense the time and information necessary to properly investigate the charges is a recipe for wrongful conviction.

Just look at the case of Innocence Project client Michael Morton, who was exonerated after DNA evidence implicated another man in the murder of Morton’s wife, for which he was convicted. After he spent nearly 25 years in prison, Morton’s post-conviction lawyers discovered that evidence of his innocence had been withheld at trial. Unfortunately, this is not an aberration: The National Registry of Exonerations reports that 44% of exoneration cases involve concealment of exculpatory evidence by prosecutors. Because the 2019 discovery laws reduce this real and unacceptable risk, rolling these reforms back — for any category of case ‘ will impair the functioning of the legal system and have no impact on public safety.

In order to keep our city safe, the mayor should build on the important reforms that are already in place. And data shows that public-health-centered violence intervention programs do a better job of preventing and decreasing crime than policing and prosecution. Locally supported projects like in Crown Heights, where the community-based Save our Streets initiative, whose slogan is “Stop Shooting, Start Living,” led to a drop in gun violence that was 20% greater than in adjacent policing precincts.

The safest communities are not the ones with the highest jail populations. They are the ones with the best crime prevention programs, safe affordable housing, good jobs, access to mental healthcare and drug treatments. That’s where the mayor should be investing time and effort to better protect our communities.