Why Should the Holder Killing Make Us Rethink Bail and Diversion Programs?


After the murder of NYPD officer Randolph Holder last week, Mayor Bill de Blasio surprised many observers when he announced a plan that would make it easier for judges to deny bail to defendants awaiting trial.

The shock stems from the fact that the mayor’s declaration appears to be an about-face from just about everything he had stood for in the criminal justice realm. Two years ago de Blasio ran for office on a platform of criminal justice reform, advocating a more progressive approach to policing. And only a few months ago, he called for the expansion of pretrial supervision in order to keep more people out of jail.

In the wake of Holder’s killing, de Blasio proposed two key changes to state law. One would allow judges to consider the risk to “public safety” when deciding to set bail (or to deny it altogether). The other would require judges to consider the likelihood that a defendant would flee the jurisdiction if offered pretrial diversion such as a drug treatment program.

De Blasio’s timing was in no way coincidental. Holder’s suspected killer, Tyrone Howard, had recently been allowed to enter a drug treatment program after pleading guilty to distribution charges. He skipped out on the program and was being sought for arrest when he killed plainclothes officer Holder following a shootout with rivals in Harlem.

If not for that diversion program, he might have been behind bars at the time of the murder — a fact both the mayor and NYPD commissioner Bill Bratton seized upon immediately.

“The death of Officer Randolph Holder was a clear and tragic signal that we must ensure dangerous individuals with long criminal histories do not walk our streets,” de Blasio declared in a written statement. “Yet as the law stands, judges can only consider risk of flight when determining a bail amount.”

Howard has a long history of run-ins with the law. He reportedly has 23 arrests on his record, and two convictions, for drug possession and distribution charges. None of his convictions, however, have been for violent crimes. (Prosecutors say he was linked to a 2009 shooting; he was arrested in that incident but never indicted.) Based on what Manhattan Supreme Court Justice Edward McLaughlin knew when Howard appeared before him in May, drug court and a treatment program were a logical fit, as opposed to years behind bars.

Evidence suggests that given his history and the charges he faced, Howard was among the offenders most likely to do well in a drug court.

Research shows that, far from coddling criminals, drug courts make people less likely to reoffend. In 2013 the Center for Court Innovation released the most comprehensive analysis to date of New York State’s drug courts. It showed modest but statistically significant benefits for drug court participants as compared to other offenders.

“After one year,” the CCI report found, “drug court participants were significantly less likely than the comparison group to be re-arrested (22% vs. 25%). Participants were also significantly less likely to be re-arrested for a drug crime at the one-year mark (8% vs. 11%). As expected, by the two-year mark, re-arrests and drug re-arrests had increased in both samples. However, drug court participants were still significantly less likely to be re-arrested on any charge (32% vs. 36%) or on a new drug charge (13% vs. 15%).”

The benefits aren’t miraculous; nor are they negligible. And the suggestion that drug courts lead to more criminal activity is demonstrably wrong. Substance abuse problems are a prime risk factor for crime, and given that Howard’s previous convictions were drug-related, it would certainly seem reasonable to think that addressing his substance abuse issues — through intensive counseling along with regular monitoring by program officials and urine-testing to ensure accountability — would help him stay out of trouble.

In fact, evidence suggests that given his history and the charges he faced, Howard was among the offenders most likely to do well in a drug court.

CCI’s report found that felony offenders who, like Howard, face lengthy jail terms if convicted are more likely to successfully complete drug court programs than are those who face lesser charges. Howard reportedly was addicted to PCP; according to the report, users of harder drugs tend to do better in drug courts than those with alcohol or marijuana problems. If you’re interested in a fact-based approach to criminal justice — and if you lack a crystal ball — Howard fit the profile for a diversion program.

Much of the press coverage of Howard’s history portrays diversion programs as veritable cattle calls fed by softhearted liberals in robes. But in a study the Village Voice examined earlier this year,  the Vera Institute, a criminal justice research agency, found that only about 20 percent of eligible offenders actually enter diversion programs, at least in part because many prefer not to. As one defense attorney quoted in the report put it, “It isn’t an overwhelmingly large number of defendants that actually want to go to the drug program.”  

The reason? They find diversion programs too onerous. Accepting a conviction might end up being less burdensome than signing up for a lengthy period of monitoring and counseling, sometimes with dire results for a failed drug test or other lapse. Howard experienced this firsthand: He missed a counseling session, and a warrant was immediately issued for his arrest.

Erring on the side of incarceration is the kind of blindly tough-on-crime approach De Blasio used to claim to oppose.

It’s not at all clear what the plan de Blasio ultimately endorses will look like. A spokeswoman for the administration told the Voice that details have yet to be discussed. But if it tracks with the plan proposed by Jonathan Lippman, chief judge of the New York Court of Appeals, whom de Blasio cited in his announcement, it will give judges wide latitude to determine an offender’s risk. The Legal Aid Society, which represents indigent defendants in New York courts, almost immediately expressed its reservations about the plan. And while de Blasio points out that many other states incorporate a risk assessment in their bail determinations, the idea that there exists a reliable system to predict an offender’s likelihood of violence is dubious at best.

In 2011, a U.S. Department of Justice–funded study found that jurisdictions that attempt assessments like the ones de Blasio is presumably calling for rely on ad hoc, poorly supported metrics that aren’t much better than a guess. “The criminal justice field knows very little about pretrial interventions and their effects for different categories of defendants,” the report from the Pretrial Justice Institute reads in part, “and it has yet to develop an empirically tested repertoire of conditions that are aligned with the types of risks posed by different defendants.”

In an interview with the Wall Street Journal, Matthew D’Emic, an administrative judge in the Brooklyn Supreme Court, pointed out what should be obvious: Diversion programs — and, ultimately, bail systems of any kind — come with some risk. The Howard case is “every judge’s nightmare,” D’Emic told the Journal. “[But] you can’t do the job if you’re afraid. If you’re afraid, you put everybody in jail.”

Erring on the side of incarceration is the kind of bullheaded, evidence-averse, blindly tough-on-crime approach de Blasio used to claim to oppose. And it seems shortsighted to back off proven reforms when the going gets tough, even as tough as a gut-wrenchingly tragic, if demonstrably rare, incident like Holder’s killing. It’s not unusual for one galvanizing event to prompt a shift in policy. But it’s almost always misguided.