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Gathering the Strays

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eye on the news

Gathering the Strays

How language and policy reduce personal culpability June 9, 2022
Public safety
Politics and law

Crime is elevated nationwide, and criminologists are seeking explanations. Over Memorial Day weekend, more than 30 Americans were shot to death; in Chicago alone, 33 were shot, six fatally. But academic theorizing, bad prosecutorial and enforcement policies, and misguided public narratives have concealed the best solution for curtailing crime: demand personal culpability. Society should make it clear that illegally carrying and shooting firearms has consequences. Instead, too many public figures broadcast the opposite message.

Loose language can impede the proper attribution of culpability. Last month, Kyhara Tay, an 11-year-old girl walking outside of a Bronx nail salon, was shot and killed. An 18-year-old, Omar Bojang, and a 15-year-old were charged with her murder. According to prosecutors, the suspects were trying to kill a 13-year-old when they unleashed their barrage of bullets. Kyhara was struck and killed by what the media has termed a “stray bullet.” But the legal concept of actus reus, which refers to the voluntary physical action that must occur in order for a crime to be committed, and the dictionary definition of “stray,” which describes something that has escaped from its proper or intended place, remind us that nothing is stray about a bullet that has no place on the street. Carrying an illegal gun, pointing it into a crowded city street, and pulling the trigger with a wanton disregard for human life is a voluntary physical act. (Kyhara unfortunately joins a list of New Yorkers killed recently by indiscriminate gunfire while going about their daily lives: 23-year-old Sally Ntim was shot and killed in April while sitting in her car waiting for food from her favorite Bronx restaurant; 16-year-old Angellyh Yambo was shot and killed in April while walking home from school in the South Bronx; and 12-year-old Kade Lewin was shot and killed in Brooklyn while eating dinner in his aunt’s car.)

Policymakers have also backed away from the lesson of culpability. The 18-year-old suspect in Kyhara Tay’s murder accused of driving the moped used to flee the scene had a lengthy criminal record. His record includes two open gun cases in youth court, two arrest warrants (one being in youth court), and a complaint for attempted murder—and those are only the cases we know about. Why was he never held to personal account for doing heinous things?

In 2018, the New York State Legislature raised the age of criminal culpability from 16 to 18, under the so-called Raise the Age law. According to an Albany Times-Union report, many offenders who would have been held in detention for their crimes now get released, pending a court date, owing to the lack of secure juvenile facilities, and watch their cases languish for months without any court intervention. A study by the New York City Criminal Justice Agency found that 16-year-olds arrested after the law came into effect—in other words, charged as juveniles instead of adults—were rearrested at a higher rate than those arrested before the changes (48 percent versus 38 percent). Thirty-five percent of post–Raise the Age rearrests were for a felony, while 27 percent were for violent felonies.

In New York, this law is just one of many “reforms” that have removed deterrents to, and punishments for, street violence. Bail reform prevents judges from setting bail in certain circumstances, causing offenders to be released back to the streets. State discovery reform inhibits prosecutors from taking viable cases to trial. Less Is More releases violent parolees onto the streets. District attorneys have unilaterally decided what they will and will not prosecute, notwithstanding the laws on the books. And the recipe has been reproduced around the country: the explosion in violence in Cook County, Illinois, home to Chicago, owes in no small part to a 2017 bail reform law and prosecutor Kim Foxx’s approach. Homicides have risen by over 50 percent, jumping from 506 murders in 2019 to 774 murders in 2020 and shootings did as well, rising to 4,126.

Any reforms worth pursuing will be those that protect blameless citizens who are ordering dinner or walking home from school, not those that embolden criminals. It’s time to look hard at our existing policies, state and local, and ask whether they reinforce personal culpability. That’s how we can gather up the strays.

Photo by KRISTON JAE BETHEL/AFP via Getty Images

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