Opinion: ‘Felony arrest’ data shouldn’t determine criminal justice policy

In a world that followed facts and reason, not politics and fear, all policymakers – Democrat and Republican alike – would be standing proudly behind bail reform. In New York, as well as Houston and Los Angeles, years of evidence prove unequivocally that bail reform has worked. Along with other modest, reasoned steps to limit the number of people incarcerated pretrial, bail reform has spared hundreds of thousands of people charged with the lowest-level crimes (most misdemeanors and some non-violent felonies) from jail and saved hundreds of millions of taxpayer dollars, all while reducing the likelihood of rearrest. 

If our policymakers truly cared about health and safety, they would be discussing how to expand policies like bail reform. Instead, over the last few months in New York, “bail reform” once again dominated discourse for all the worst, most misleading reasons. Democratic Gov. Kathy Hochul held the state budget hostage for weeks in order to try to pressure state Democrats into expanding the already vast power of judges to set unaffordable bail in cases that bail reform doesn’t even touch: all “violent” felonies, a large number of non-violent felonies, and an increasing number of misdemeanors as well. Despite having supermajorities in both the state Senate and Assembly, Democrats unfortunately caved, ignoring facts as well as political wisdom to limit bail reform for the third time in less than four years. 

The idea that New York judges needed more power to set bail was, of course, a farce.

Judges already routinely abuse their broad power to set bail. Some judges set bail in nearly 8 out of 10 eligible cases. The result of this already-broad judicial power: nearly 6,000 people suffering on Rikers Island. Over 90 percent of them are Black or brown, and the vast majority are jailed pretrial on unaffordable bail. 

In order to win her case to needlessly enhance pretrial incarceration for Black, brown and poor New Yorkers, Hochul aligned herself with the GOP against her own party to scare New Yorkers with terms like “felony arrests” and “serious crimes.”

It worked. It usually does. The public narrative and policy discussion around bail reform, crime and safety tend to center police arrest data and weaponize terms like "felony arrests" and “serious crimes” to strike fear into the hearts of many. Police, prosecutors and politicians always find a way to fearmonger about felony arrest numbers (whether they’re increasing, decreasing, or just remaining steady) to justify measures that will put more people in jails and prisons for longer. 

Little attention, however, has been paid to what actually happens in these felony cases after arrest. Instead, we are encouraged to believe that these incidents are as serious and scary as the dominant narrative makes them out to be. We are led to assume that all people arrested for those crimes are actually guilty and will inevitably be convicted and sentenced to serious prison time.

Leaders like Hochul take advantage of these assumptions to defend harmful, fact-free policy decisions. But none of these assumptions are true.

So, what actually happens to most “felony arrests?”

Felony arrests aren’t felony convictions

As a public defender in Brooklyn for nearly 10 years, I saw how felony arrests were routinely overcharged by police and prosecutors, leading in many cases to dismissals and pleas to lesser charges or simple infractions. I also saw how our largest-in-the-nation police department made massive numbers of arrests, inevitably sweeping up countless people who have done nothing wrong at all. So I wasn’t surprised when I turned to data from the New York State Division of Criminal Justice Services and found that in 2021, the most recent year for which data is available, 86% of all felony arrests in the state were ultimately dismissed. In New York City, often demonized in the news despite being the fifth-safest big city in the country, the rate of felony dismissals was even higher: 93%.

Here is how that is possible.

I focused on felony arrests because they are often characterized as the “serious” crimes that are used to undermine reform and other alternatives to state control. Of the 107,796 New York cases that began as felony arrests, more than half (52,372) were dismissed, including acquittals for the few that went to trial.

Of the remaining 50,435 felony charges that ended in "convictions" in 2021, 72% were resolved as low-level misdemeanors or non-criminal infractions, with all initial felony charges dismissed. This squares with what defenders know: police and prosecutors routinely overcharge lower-level offenses as felonies to create bargaining power. The incentives for people charged for felonies are clear: If you plead guilty to a misdemeanor or less, you’ll go home from jail and also avoid the scarlet letter of a felony conviction on your record. If you keep fighting your case, you’ll stay in jail and face the threat of scary and harsh mandatory minimum sentences. The result is that prosecutors charge people with felonies even though they know that they don’t have enough evidence to get a felony conviction, just to coerce people into pleading guilty to a lower-level charge rather than continuing to fight their case.

When we combine all those felonies that ended in misdemeanor convictions or less with all the felony charges that ended in outright dismissals or acquittals, the number is even more remarkable: nearly 88,000, or 82%, of arrests originally charged as felonies in New York did not lead to felony convictions in 2021. The same dataset shows that just 6.7% of all felony charges in New York state in 2021 resulted in upstate prison time.

The same patterns are even more pronounced in New York City, the perennial national punching bag for disingenuous politicians and media outlets. Of the 62,440 arrests in the city that were charged as "felonies," nearly 70% were dismissed, including acquittals, with the vast majority of dismissals by prosecutors. Of the remaining 19,717 felony charges that ended in "convictions" in 2021, 80% resolved as low-level misdemeanors or infractions with all felonies dismissed.

Taken together, 93% of arrests that began as felonies in New York City and resolved in 2021 did not end in felony convictions. And 57% of all New York City felony arrests that ended in conviction in 2021 included no additional incarceration as part of the sentence at all. 

Misleading arrest data

Police, prosecutors and their allies often use felony arrest data to argue for more pretrial detention and other tough-on-crime policies. But the same data shows that judges would be jailing people pretrial – upending and endangering their lives in the process – who are extremely unlikely to be convicted of a felony and even less likely to be sentenced to prison, undermining the necessity of incarceration in the first place.

The fight over bail reform, then, is really about whether to give judges – already predisposed to over-incarceration – even more power to jail people at arraignments, a minutes-long hearing when almost nothing is known about a case, when the data show people are almost never sentenced to incarceration after the facts become more clear.

Police and tough-on-crime politicians warn about the specter of “serious crimes” to scare New Yorkers into supporting carceral policies. But consider the story that New York’s arrest data actually tells us. The vast majority of felonies charged in New York are not “serious” enough to prosecute as such. We know this because prosecutors dismiss over five out of every six of these cases. As any public defender could tell you, what a person is charged with often has very little to do with the underlying facts in a case and how it ultimately resolves. 

Any conversation about safety and pretrial detention should begin with the ongoing humanitarian crisis on Rikers Island and other pretrial detention complexes, and the families of loved ones who have died because of pretrial caging. It should include real solutions that keep our communities safe, like well-funded schools, living wage jobs, and access to affordable housing and health care; the things that actually make communities healthy and safe.

The Democratic supermajorities in the Legislature may have caved on bail, but there’s still time for them to advance justice on other fronts before this year’s legislative session ends by passing the Clean Slate Act, Challenging Wrongful Convictions Act, Elder Parole Act and Fair & Timely Parole Act – four bills with majority support that await action by legislative leaders to allow a floor vote.

Fearmongering does not belong in the conversation.