The debate over dangerousness

At a recent forum, City Councilmember Michael Patterson began his speech not with words, but with an audio recording, a 15-second clip of frantic screaming as gunshots rang out.

This recording of an event interrupted by gunfire was from a balloon release for Jeremiah Baker, himself a young victim of homicide by firearm. Three people, including two girls under 17, were injured by the shooting. Such events underscore Patterson’s push for a dangerousness standard.

“I humbly submit to you that the individual who shot these people in prayer might be dangerous. And I would hope that our judges in the city of Rochester would be able to consider the dangerousness of that individual,”Patterson said at a forum hosted by United Christian Leadership Ministry in December 2022.

Patterson’s drive-by example was just one of over 300 shooting incidents that occurred last year in Rochester, outpacing the annual average of 190 incidents. Last month, the city recorded six homicides – the most for January in at least a decade. 

With this level of violence, Patterson believes changes to the bail system could be a solution to keeping illegal firearms off the street. Not everyone agrees with him, however. Some view using the standard in such a way would result in discrimination and be ineffective. 

The standard

A dangerousness standard, which exists in 49 other states and the federal system, allows judges to consider their subjective view of how dangerous a person potentially is when deciding release conditions. New York judges are barred from considering this due to precedents set in the 1970s to limit racial and economic discrimination.

In 2019 the bail system was altered in New York–money bail for most misdemeanors and nonviolent felonies was eliminated. Patterson, as well as other local lawmakers, believes illegal gun charges should fall under greater scrutiny, and favors instituting a dangerousness standard for those crimes. 

“If one individual has a gun, and it rises to the federal standard, that individual stays in jail. If the feds decide not to pick up that case, that same individual is probably going to be released onto our streets,” Patterson said, sharing an anecdote from his district in which a man arrested three times for gun charges was released. “Every time it was, ‘We caught him, took him to jail, $15,000 bond, paid it, back out here now.’”

Two separate letters from prominent Rochester leaders were sent to Gov. Kathy Hochul asking for a special session to amend the bail laws. The concept has received support from community leaders such as the Faith Leaders Roundtable, and, outside of Monroe County, New York City Mayor Eric Adams and Republican gubernatorial candidate Lee Zeldin have both spoken favorably about such a possibility.

But even with the high level of public support for instituting a dangerousness standard, Mike Green, former prosecutor with the Monroe County District Attorney’s office and visiting assistant professor at Rochester Institute of Technology, says the standard as a mistake and supporters are light on specifics. He believes that instituting such a clause would instead prove ineffective at reducing  gun violence and dangerously undo protection against discriminatory rulings.

“If we are changing the system, we need to be absolutely certain it will be better than the good it will neutralize,” says Green, who recently released a paper with RIT’s Center for Public Safety Initiative. “In May 2022, the Legislature took a fine and measured approach toward dangerousness already and allowed judges to consider a history of gun possession in setting bail. Frankly, going any further than that would make any racial disparities even worse.”

A backdrop of violence

Undeniably, gun violence is a growing and disturbing phenomenon in Rochester. From 2000 to 2019, the average number of fatal and non-fatal shooting victims was just under 190, an analysis of Rochester Police Department data shows. Since then, each year has had more than 300 shooting victims. In 2021, that number topped 400.

“Now I’m not going to sit here and tell you that the increase in gun violence we have experienced since bail reform was passed is the direct cause of it. I don’t know that to be true. But three years into bail reform, the number of shootings has doubled,” Patterson said.

Data from the Bureau of Alcohol, Tobacco, Firearms, and Explosives tracks a similar spike in the number of illegal guns recovered in the area. From 2014 to 2019, the agency recovered an average of 519 guns in Rochester. In both 2020 and 2021, the number jumped above 700 recovered in the city. (The numbers for 2022 are not available yet.)

In 2021, ATF found Rochester had the highest number of recovered guns per capita in the entire state. CPSI’s latest annual homicide report found that Rochester had the highest homicide rate per capita (36 per 100,000 people) both in its population category and when compared to Buffalo, Syracuse and New York City.

The majority of this violence has largely impacted people of color. On average, from 2000 to 2022, Black victims made up 82 percent of all fatal and nonfatal shooting victims. During those two decades, they accounted for at least 72 percent of all victims every year.

Last year, in an effort to curb this trend, Rochester Mayor Malik Evans declared a gun violence state of emergency, bolstered anti-violence efforts in the city, and filed a lawsuit against firearm manufacturers. Evans was copied into Patterson’s letter urging the governor to adopt a dangerousness clause along with New York State Assembly representatives Harry Bronson, Sarah Clark and Jen Lunsford, and state senators Samra Brouk and Jeremy Cooney. City Councilmembers Miguel Melendez, LaShay Harris and Willie Lightfoot, were cosigners to the letter.

“We are not asking you to change or modify bail reform but rather to allow for a new lens to be used for gun crimes,” Patterson’s letter reads. “Choosing to possess an illegal firearm is a choice. Being shot by one is not. We have a duty to protect our community from gun violence, and we need this tool immediately to protect innocent people.”

A month before Patterson’s letter, another letter of support was sent to the governor from Robert Duffy, president and CEO of the Greater Rochester Chamber of Commerce and former Rochester police chief and mayor and New York’s lieutenant governor. While stating his support for addressing economic and racial inequities with bail reform, Duffy called on his experience in law enforcement to make the case for this standard.

“Robberies, assaults, carjackings and illegal gun possessions plague our streets every day, and the perpetrators are being met with appearance tickets,” he writes.

“Here in Rochester, we have had kids shot walking to a corner store, occupied houses are hit by gunfire on a routine basis, over 50 shots were fired in one single incident last week, and a 29-year veteran police officer was executed while working on solving a previous homicide,” the letter continues. “We are creating an environment where there are no consequences for unruly behavior.”

Another viewpoint

While Green does not doubt their concern, he says statements like those in Duffy’s letter or the drive-by shooting audio clip used by Patterson are frustrating to hear and unnecessarily complicate the topic. 

While incidents of motor vehicle theft are rising, cases of robberies and aggravated assault are on long-term downward trends, Green notes. In addition, those crimes would be violent felony offenses, cases that would not affect judges’ ability to set bail.

Even in such cases where bail can be set, not all judges mete out the same sentence. Green recalls a case decades ago where a sexual assaulter committed another assault while out on bail. Prior to the incident, two separate judges upheld the decision to give him bail. Green has no doubt that the incident today would be blamed on reforms, although it really came down to the judges’ decisions.

“As a prosecutor, it would make me want to bang my head against the wall when that happened. But that’s the sticking point. (The bail system) is an age-old issue that really comes down to the fact that there’s no way to tell what’s going on in a judge’s head,” he says.

“Did they make their decision because of bail reform, or because they didn’t want to give someone the risk of COVID, or because they have a tendency to release people, or because they have a bias because of structural racism? We don’t know for certain.” Green continues. “Making a tweak to the system isn’t going to solve these long historical issues.”

In addition, Green’s examination of the data does not support the idea that current measures have resulted in violent rearrests. He points to a 2020-21 analysis of cases affected by bail laws, which found that 2 percent led to a violent felony rearrest, down from 4 percent statewide.

A local analysis suggests similar results in Rochester city court, where 1.6 percent of eligible cases were rearrested on violent charges. As of December 2022, Kristine Durante, chief probation officer in the Monroe County Probation Office, says out of 400 people on violent felony probation, 15 were rearrested for a violent felony offense. 

“If you go through the hundreds of cases that happen every year in New York, of course you’ll find an anecdote to support your point. If you look at (Patterson’s audio example), you’d be for a dangerousness standard, but if you look at the (Kalief) Browder case, you’d be for bail reform,” Green says. “Anecdotes can’t be the only way we decide policy.”

“Those who oppose a dangerousness standard say that it’s discriminatory at best, racist at worst, and that the brunt of those detained will be Black and Brown,” Patterson says in his letter. “We humbly submit that the citizens who are shot in Rochester are predominantly Black and Brown, and as Black and Brown members of Rochester’s City Council, we believe this step is necessary so we can adequately protect our community (and most specifically our communities of color within it).”

Due to prior status as a youthful offender, Kalief Browder was held at Rikers Island jail complex without trial from 2010 to 2013 starting when he was 17. His family could not pool together $1,000 they needed for the bail. During his imprisonment, he suffered violence from other inmates and prison guards and was held in solitary confinement for nearly two years. After being released and showing obvious signs of trauma, he committed suicide in 2015.

At the UCLM forum, Green noted that before bail reform, thousands of people have been held on misdemeanors and nonviolent felonies because they couldn’t post bail for an amount as low as $500.

For Green, opening up illegal gun charges to a dangerousness clause could expose those thousands of people to brutal prison circumstances like Browder’s. 

John Bradley, special assistant with the Monroe County Public Defender’s Office, agrees.

“I have cases where someone was driving without a license, speeding, with an illegal firearm, and I ask the same thing you might ask, ‘Why the heck are you taking that kind of risk?’ It’s because they’d rather risk going to jail than dying,” says Bradley, who believes this type of illegal gun ownership is widespread across the city.

Is there a way forward?

Patterson still holds strong the belief that a dangerousness standard could offer much needed aid. At the time of the UCLM forum, he suggested a link between people held on federal charges, where dangerousness can be applied, and a decrease in shootings that week.

“You’ve heard shootings are down. I can’t say directly why shootings are down, but in my conversations with the sheriff, we have over 40 individuals in the Monroe County jail who are being held on federal charges using the dangerousness standard,” Patterson said. 

Though there is correlation between changes to bail and the rise in violence, Green says, this does not prove causation. Instead, he believes two major events in 2020, the COVID-19 pandemic and murder of George Floyd, carried greater impact. These separate issues all manifested just when the most recent bail reform efforts took effect.

The pandemic caused courts to slow or completely shut down, resulting in a decline in both felony and misdemeanor convictions of over 50 percent. Courts, police and anti-violence support teams ran into staffing issues due to the pandemic and trust issues due to Floyd’s death, further exacerbating the issue.

“Parole and probation, which rely heavily on face-to-face interaction between officers and those under supervision, suffered significant disruption as well due to staffing shortages and the inability to safely personally interact,” Green writes in his CPSI report.

He also notes the explosion of firearm sales in the country, which are directly related to future illegal gun sale and ownership.

Instead of a dangerousness standard, in the long term, Green supports strengthening communities hit by gun violence as these typically have the fewest resources. In the short term, law enforcement needs to be more strategic, he suggests. Hot spot policing, street outreach work and gun violence intervention efforts, for example, could go a long way to aiding the issue and increasing law enforcement’s effectiveness.

“We need to ask, are we using them properly? Imagine if 70 or 80 percent of non-fatal shootings were solved versus the current 20 to 30 percent. It would send a message guns aren’t tolerated on these streets,” Green says.

“This isn’t to finger point or blame RPD either—they need support,” he adds. “We’d be better off, instead of railing against bail reform, to advocate for law enforcement to have those resources.”

Three-year non-fatal shooting investigation programs in Utica and Newburgh involved many layers of the justice system to focus on shootings, Green observes. Ultimately, the solve rate grew from 14 to 40 percent in Newburgh by the end of the program.

“None of this work is easy. It does not allow us to blame others for our problems or rely on others to solve them for us. It will require all of us together to do the hard work over time that is needed to make progress,” Green says in his report. “Using evidence and data to accurately assess the problem and its causes, and using tested and proven strategies, law enforcement and the community working together can make a difference.”

Supporters of the dangerousness standard also agree that collaboration is needed to create safe cities but view it in a different light.

“We can certainly have safe communities and strong police-community relationships if we are willing to work hard to achieve it,” Duffy writes. “Instead, we have demoralized law enforcement for the inappropriate actions of a few and created more divisions than I have seen in my entire life. The anger out here is palpable, and it is due to all sides digging on their positions as opposed to coming together and forging a path that works for everyone.”

Jacob Schermerhorn is a Rochester Beacon contributing writer. The Beacon welcomes comments and letters from readers who adhere to our comment policy including use of their full, real name. Submissions to the Letters page should be sent to [email protected].