A month or so before the election, the New York Post‘s sensationalism remained wide-ranging. The old saying “If it bleeds it ledes” was still true on many days. Headlines warned of the dystopian (“Blade Runner”) and the apocalyptic (“Holy Hell”), or presented the city as pitifully ignored (“Will No One Help Us?”). But not on every day. Fans could also find covers about Kim Kardashian’s crypto shilling (“Pump and Rump”), a Russian dictator (“Vlad Omen”), and a president’s son (“Hunter Hidin’”).
Then things changed as Rep. Lee Zeldin (R-N.Y.) closed in on Democratic incumbent Gov. Kathy Hochul. Of the 20 covers published in the final weeks of the New York governor’s race, all but two mocked Hochul, depicted New York City as a violent hellscape, or simply urged readers to vote Republican in the governor’s race.
Zeldin, a 42-year-old Long Island congressman first elected in 2014, and Rupert Murdoch’s tabloid were aligned on the idea that only one issue really mattered this year: crime. At rallies, Zeldin told crowds that he’d use his first minutes in office to declare a “crime state of emergency” and fire Manhattan’s progressive District Attorney Alvin Bragg, who enjoyed more than a 60-point margin in last year’s election. If the legislature didn’t cooperate, Zeldin promised to unilaterally repeal New York’s 2019 bail reform law, along with other criminal justice measures passed by Democrats. He spent seven figures on a television ad mostly featuring Black men committing violent crimes.
🚨It's time our families feel safe again!
Just released our 1st general election TV ad, “Take Back Our Streets”, airing statewide with a seven figure buy.
In Kathy Hochul’s New York, crime is out of control.
We must FIRE Hochul, TAKE BACK our streets, and SAVE our state. pic.twitter.com/8Z4ihnUd6O
— Lee Zeldin (@leezeldin) September 14, 2022
As in any good tabloid saga, Zeldin needed a villain that was both specific and universal. There’s crime in every state—in fact, many parts of the country have much more of it. But in post-pandemic New York, the issue carries a special resonance. Blight cannot be bypassed on freeways. People who experience homelessness and mental illness are in subways, in parks, and on the walk to work. While violence remains heavily concentrated in poor neighborhoods, it might not feel that way. Lambasting bail reform, which required that most defendants be released pre-trial, was a way to make it seem to voters as if the many problems invoked by the idea of “crime” could be done away with in an instant.
Starting in the early ’90s, crime in New York City steadily declined for three decades. The NYPD ended 2019 by announcing that crime had hit a record low. The idea that the city would get safer year after year started to feel inevitable. But crime is now up by about 30 percent over the last two years—even as it remains 80 percent below where it was in 1990, according to NYPD data. New York is still significantly safer than other major cities, where homicides have also risen in recent years.
Nonetheless, coverage of crime has skyrocketed since Mayor Eric Adams, a former cop who has made public safety his signature issue, took office at the start of the year. In February, 74 percent of New Yorkers told Quinnipiac pollsters that crime was a “very serious” problem in the city. In 1999, when there were roughly twice as many murders as there are today, only 35 percent said that.
There’s a narrative that’s inaccurate that’s driving people’s perception of crime in the subway, says Chief Corey.
— Kevin Duggan (@kduggan16) September 19, 2022
The GOP has taken advantage of this feeling of unease. They were helped by having crime as the target and bail reform as the bull’s-eye. It had all the important ingredients: Bail reform in New York came in the form of a statewide law that went into effect in 2020; Democrats were solely responsible for the legislation; and a bipartisan backlash began almost as soon as the measure was passed. Bail reform became the embodiment of all the ways Democrats supposedly put criminals above law-abiding citizens—even though there was no convincing evidence the law was driving the recent increase in crime in New York.
Nationally in this year’s midterms, Republicans mostly failed in efforts to weaponize rising crime rates. But in New York, they were remarkably successful. Heading into the election, 28 percent of New Yorkers ranked crime as their top priority—more than any other issue—in contrast, only 5 percent of voters listed crime or guns as their top concerns in a national survey that month. The year before this election, Republicans had used the same crime messaging to great effect on Long Island, where moderate Democrats lost in races they were initially favored to win.
Unlike in the rest of the country, Republicans in this year’s midterms managed to pull off something close to a red wave in New York. Hochul ultimately won. But she prevailed in one of America’s bluest states by fewer than six points. She ran 17 points behind where Cuomo and Biden ended up in 2018 and 2020. (In neighboring Pennsylvania, Josh Shapiro ran 13 points ahead of Biden in his race for governor, despite murders hitting a record high in Philadelphia last year.) In the state legislature, Democrats are on track to hold on to supermajorities in both chambers, but lost five tossup races in US House districts that Biden carried in 2020. Had they won, they would have secured a majority in the House.
There is widespread agreement among New York Democrats that the results were disastrous. What they can’t agree on is who to blame. Adams and centrists agreed with Zeldin that the law had gone too far and called for amendments. Progressives argued that it was doing what it was supposed to do by preventing people from being sent to jail because they couldn’t afford bail. Hochul, a white moderate from Buffalo, mostly shifted the conversation to issues like abortion and protecting democracy. The result was a jumbled message that had little chance of surviving an integrated onslaught.
A few days before the election, Zeldin drew hundreds of mostly Asian supporters to a rally at a dim sum hall in Flushing, the Queens’ Chinatown that has moved significantly to the right since 2020. After the event, I asked Bernard Chow, a leader in the New York Chinese community who was a Democrat until a few years ago, what was most important to Asian voters this year. “Well, the most important issue is public safety,” Chow said without hesitating. “New York is really out of control in terms of crime, in terms of order…Whoever is elected right now, they just don’t care.”
Many factors were at play this year. Hochul was running as the incumbent after Andrew Cuomo resigned in disgrace last year. Democrats in Albany have produced countless corruption scandals over the years. Moderate judges appointed by Cuomo rejected an aggressive gerrymander that Democratic legislators tried to push through. But voters’ concern about crime was the issue in which all of these dysfunctions played out.
“What Zeldin did effectively was acknowledge for New Yorkers that there are concerns about crime and safety,” Insha Rahman, a vice president at the Vera Institute, a Brooklyn-based nonprofit that fights mass incarceration, told me after the election. “Kathy Hochul, on the campaign trail, spent millions and millions of dollars on ads, but on abortion, the economy, on democracy, on attacks on Lee Zeldin. But not on reassuring New Yorkers that her priority is to prevent crime and to deliver on safety. And that was a mistake.”
To understand what happened in New York, it helps to go back to when the issue was not crime, but criminal justice reform, and to look across the river to New Jersey. A 2013 study from the Drug Policy Alliance found that more than 10 percent of the state’s jail population was being held pretrial because they couldn’t afford to make bail of $2,500 or less. At the time, there was increasing bipartisan acceptance that bail laws across the country were effectively criminalizing poverty by keeping many people in jail solely because they couldn’t afford bail.
In 2014, New Jersey’s legislature passed historic bail reform measures with broad bipartisan backing. The unusually long list of supporters included the state’s Republican governor, Chris Christie; the ACLU of New Jersey; the top judge in the state; and its head public defender. The most vocal opposition came from a not particularly sympathetic corner: bail bondsmen, who were going to be put out of business. That same year New Jersey voters approved a constitutional amendment proposed by the legislature that allowed the state to detain people pretrial who were deemed a threat to public safety, a form of a so-called “dangerousness” standard.
In doing so, the state largely eliminated cash bail. Instead of setting bail, judges began using a a risk-assessment tool to help decide if someone should be released pretrial. The law largely worked as intended after it went into effect in 2017. A study from Arnold Ventures, a nonprofit funded by the billionaires John and Laura Arnold, found that the reform allowed New Jersey to reduce its pretrial jail population by more than 43 percent between 2015 and 2018 with minimal impact on public safety.
Even though there was frustration on the left that the risk assessment tool New Jersey used ended up doing little to reduce racial disparities in the pretrial detention population, in absolute terms, the law significantly reduced the number of people of color in jail. From the right, some in law enforcement thought the new system was too lenient. Still, this wasn’t a major backlash. In Gov. Phil Murphy’s (D-N.J.) surprisingly close reelection bid last year, crime wasn’t a major issue.
New York’s bail reform process was more convoluted. Its origins extend back to 2010, when 16-year-old Kalief Browder was arrested in the Bronx after being accused of stealing a backpack. Unable to afford the $3,000 bail, Browder spent three years on Rikers Island—much of it in solitary confinement—as he maintained his innocence and waited for his trial. In 2013, the case against him was dismissed, and he was released. A New Yorker profile in 2014 helped bring widespread attention to his experience. In 2015, Browder died by suicide. The obvious injustice galvanized calls for immediate action.
At the time, New York was one of the only states that prohibited judges from considering whether a defendant posed a threat to public safety when setting bail. In practice, judges often factored in perceived dangerousness when making bail determinations, which made New York less of an outlier than it may have seemed.
Cuomo, then-Mayor Bill de Blasio, and New York’s head judge wanted an overhaul to replicate New Jersey’s approach. They hoped to do so by eliminating cash bail, adding a so-called dangerousness standard for pretrial detention, and using some form of a risk assessment tool to help determine who remained in jail pretrial. Some Democrats in the state legislature, advocacy groups, and public defenders argued that doing so would invite racist pretrial detention decisions and undermine New York’s longstanding commitment to the presumption of innocence. The late Jonathan Gradess, then the head of New York’s public defender association, argued that de Blasio’s approach “could make things terribly worse.”
It wasn’t until the 2018 blue wave, when Democrats gained control of the state senate for the first time in nearly a decade, that this reform was fully possible. Less than three months after taking power Democrats reached a deal to overhaul the state’s bail system—adopting a hybrid approach. Unlike New Jersey, cash bail remained in place for the most serious crimes. For other offenses, which accounted for 90 percent of arrests in the state, it was eliminated. New York became the only state where most defendants could not be held pretrial regardless of their perceived dangerousness.
There were reservations, however, about the way in which bail reform became law. As one organizer from an anti-mass-incarceration organization put it at the time, “It seems obvious that passing significant policy at 3 a.m. on a Sunday morning is not good process.” The initial list of offenses for which bail could not be used appeared to reflect the haste. Bail, for example, could not be set when someone was charged with the burglary of a residence. But bail could be set when someone was charged with attempting burglary of a residence. Judges were also prohibited from setting bail when someone was charged with bail jumping, as well as escaping from jail.
It provided easy fodder for opponents, even though the practical impact was minimal. “What person in their right mind would prohibit a judge from setting bail on a defendant who had escaped?” Jim Quinn, a retired Queens prosecutor and Zeldin supporter, asked when we spoke. “It’s almost like a joke.” (The law was quickly amended to make bail jumping and a number of other crimes eligible for bail.)
Before the law officially took effect at the start of 2020, the Post got to work with help from familiar sources: “Bail reform poster boy busted for slashing man in robbery: cops”; “Bail reform would turn NYC into ‘The Purge’: police union boss”; “Violent pimp tried to dodge cops until bail reform kicked in: prosecutors.”
One of the earliest stories covered by other outlets focused on a reportedly schizophrenic woman who was released after allegedly slapping three Orthodox Jewish women and shouting “Fuck you Jews!” She went on to be arrested two more times that week. (The case would be one of many that raised the obvious question of why people with clear mental health problems were getting repeatedly arrested instead of being provided treatment.)
De Blasio, who’d been elected in 2013 after calling for an end to the NYPD’s stop-and-frisk program, quickly found himself at odds with critics to his left. “The bail reform law needs to be amended. I believe this strongly,” he said as the law went into effect. “They did some very good reforms but there’s also things that need to be done—particularly empowering judges to determine if someone poses a threat to the surrounding community and giving judges the power to act on that.”
Some in the state legislature disagreed. “When I get the relevant statistics and we’re able [to] analyze it and discuss it as a conference, then I’ll have a response,” Assembly Speaker Carl Heastie said. “But until then, I don’t have anything to add on this bail discussion.”
In April 2020, the legislature slightly tweaked the law to give judges more discretion to set bail, but without adding the dangerousness standard favored by Cuomo and de Blasio. That November, Biden won New York in a landslide and Democrats gained a veto-proof majority in Albany. No backlash had taken hold.
The trouble for Democrats emerged during the off-year elections of 2021, as New York City was on its way to recording nearly 500 homicides in a year—after reaching a modern low of 292 in 2017. In the mayor’s race, then–Brooklyn Borough President Adams ran a law-and-order-focused campaign and narrowly defeated primary opponents to his left. During the general election, he said New York was suffering through a “pandemic of violence.” Before Zeldin made it a sweeping issue, Adams helped—pushing hard for amending bail reform. He won easily. But Republicans were encroaching on formerly Democratic territory in outer boroughs and beyond.
On Long Island, then-Sen. Todd Kaminsky, a Democrat who’d expressed skepticism about bail reform, entered the Nassau County DA race as the favorite. His opponent, Anne Donnelly, was a prosecutor and first-time candidate who put bail reform at the center of her campaign. After branding her opponent “turn ’em loose Todd,” she won by more than 20 points. A similar story unfolded on Zeldin’s home turf in Suffolk County. “There’s no way to sugarcoat this: This was a shellacking on a thumping,” Steve Israel, a former New York congressman, told the New York Times about the results. The silver lining for Democrats was that they had a preview of Republicans’ midterm’s strategy.
But Jay Jacobs, the head of the state Democratic party and the Nassau Democratic Party, was dismissive. “What happened in Nassau County happened in lots of places—Suffolk County, upstate New York, Virginia, New Jersey,” he told the New York Times. “What happened was Republican voters overperformed dramatically and Democratic voters underperformed.”
A week after the election, Hochul took power following Cuomo’s resignation. Heading into the 2022 budget, she put forward a 10-point public safety plan that included letting judges factor in perceived dangerousness when setting bail in the most serious cases. Adams called her plan a “big step forward.” Assemblymember Latrice Walker, a fellow Brooklyn Democrat, went on a hunger strike to protest the potential changes, saying she didn’t want the budget to be “held hostage based on the misinformation being fed to the people of the state of New York.”
The legislature ended up adopting parts of Hochul’s plan that gave judges more authority to set bail for repeat offenders and people charged with gun crimes, but not the section that would have provided judges with limited authority to consider public safety. Moderates who felt as if their concerns were being ignored weren’t exactly wrong. “Honestly,” an anonymous New York City-based progressive lawmaker later told New York magazine, “I think we’d be happy to lose the more conservative members of our conference.”
Foreshadowing the general election, Zeldin said in a statement about the new bail reform amendments that Hochul had “left changes to cashless bail out of her original budget proposal, waited until she got bad polling…made a weak initial ask, and then got rolled by the far-left to settle for almost nothing.”
Zeldin should not have been a formidable candidate in a state as blue as New York. He supported Donald Trump, voted to reject the results of the 2020 election, and later nominated Jared Kushner for the Nobel Peace Prize for his work to normalize relations between Israel and Arab nations. Nor was he particularly charismatic. But he proved to be a disciplined campaigner who obsessed over crime while avoiding both gaffes and mentioning Trump’s name.
When I went to one event on Staten Island, hundreds of mostly white people showed up to a weeknight rally outside a catering hall named Privé. Most of the crowd dressed informally in work wear and sports gear, with only a few opting for suits in a borough known for being home to cops and firefighters. Their local elected officials spoke of the rest of the city—the place beyond the bridge and the ferry—as an anarchic place where anyone could be murdered at any time. They seemed to yearn for the kind of leader who would not only inflict punishment but feel good about it. Someone like the night’s headliner, Rudy Giuliani.
After being introduced as a man who stood for law and order, the Constitution, and “everything that is great and American,” a hepped-up Giuliani took the stage. “The reason for the crime rate in this city and state is real simple: Kathy Hochul, Andrew Cuomo, and the Democrat legislature. They are the reason for it,” he barked to a cheering crowd. “There must be—people estimate anywhere from seven to 10,000 criminals walking the street, wanting to kill you, rape you, rob you, who were in jail while I was mayor.”
But America’s Mayor quickly got distracted by his Biden impression, which consisted of wandering around the stage in demented silence for an uncomfortably long time. Zeldin stayed on message as he laid out his plan to fire Bragg and stop the “violent criminals being released to roam free.”
There were also some lucky breaks during the campaign that helped drive home this narrative. Over the summer, an addled Iraq War veteran named David Jakubonis climbed on stage during a Zeldin campaign event carrying a plastic self-defense tool shaped like a cat with pointy ears. “You’re done,” Jakubonis told Zeldin before the candidate grabbed his wrist and others tackled him.
Jakubonis was charged with attempted assault in the second degree, which meant he had to be released. Zeldin seized on the experience as yet another chance to argue for the repeal of bail reform. Critics said the problem was that prosecutors had failed to bring violent felony charges on which bail could be set.
Hochul mostly avoided talking about crime as Zeldin’s attacks on bail reform went largely unanswered. Polls from SurveyUSA showed her lead dropping from 24 points to six points between June and mid-October, despite the Dobbs decision that was helping Democrats across the country. For the first time in two decades, it looked like a Democrat might lose a New York governor’s race.
Adams played his part, too. In August, he spoke at an NYPD press conference that unveiled a “Worst of the Worst” list of repeat offenders. One man had been arrested 88 times since 2020, according to the NYPD. “Our criminal justice system is insane,” Adams said. “It is dangerous. It is harmful and it’s destroying the fabric of our city.” Zeldin often made a point of saying how much he and Adams supposedly had in common. Aside from making him seem more moderate, it helped insulate a white guy from Long Island from charges of racism as he ran ads that echoed the old rhetoric about “wilding” and “superpredators.”
Bail reform horror stories had also become a staple of the local news. One wave of coverage in September featured a man who was released after he went viral for smashing things with a hatchet at a Manhattan McDonald’s. “It’s Democratic suicide to release that guy,” argued Peter Moskos, a professor at John Jay College college whose research focuses on policing.
In a familiar pattern, Hochul appeared to blame Bragg, the Manhattan DA, for not bringing charges that would have allowed a judge to set bail. But it wasn’t clear what bail-eligible offenses Bragg could have charged.
Brawl in New York City McDonald’s leads to man pulling an axe out of his backpack, then all hell breaks loose. pic.twitter.com/BPfFrDUFO3
— Mike Sington (@MikeSington) September 18, 2022
Adams and Zeldin’s rhetoric notwithstanding, no clear causality has been established between bail reform and the 30 percent increase in crime in New York this year. (Homicides are down 12 percent.) Quinn, the retired Queens prosecutor, studied the effects of bail reform in a report for the conservative Manhattan Institute. He found that 27 percent of people brought in on felony charges between July and August 2020 were rearrested while awaiting trial. In contrast, the office of New York City’s progressive comptroller Brad Lander concluded in March that there “has been essentially no change in the monthly percentage of people rearrested while released pending trial after bail reform.”
Michael Rempel, the director of the Data Collaborative for Justice at John Jay College, told me he expects that the reforms will ultimately be shown to reduce recidivism by keeping people out of jail, a place that can increase people’s likelihood of committing crimes in the future. For now, he said, “We don’t yet have clear, rigorous evidence that indicates if bail reform has had any effect on crime, or recidivism, or if it has in which direction.”
What has often gotten overlooked is that the law is letting tens of thousands of people avoid pretrial detention. In doing so, it is helping them keep jobs, preserve relationships, and avoid the many direct and indirect damages of incarceration. Rahman, of the Vera Institute, said the impact of bail reform has been similar in New Jersey and New York. “We could have adopted New Jersey, word for word, and we would actually have similar outcomes,” she explained in defending what New York’s law has been able to achieve. The main political difference between the two states was that New Jersey had a bipartisan coalition arguing in favor of the law. “Did you hear that kind of party line in New York?” she asked. “No, not even among Democrats was there a consensus that we had to do this.”
On the Saturday before the election, Hochul and local elected officials stopped at a Sunnyside, Queens, farmers market. It was a diverse crowd of a few dozen liberals; the man with the baby sling and tote bag looked at home. An Irish heckler wearing a colonial American flag t-shirt appeared brandishing a hand-written message: “Say Her Name Kathy Keaira Bennefield Dead by No Cash Bail.”
The month before, Bennefield’s estranged husband had been arrested after beating her and, according to a statement from Bennefield, sexually assaulting her. Within 24 hours of being released, he allegedly shot Bennefield to death while she was on her way to drop off her three kids at school. The story had made the cover of the Post two days in a row during election week.
The upstate prosecutor involved in the case blamed bail reform. Adam Bennefield, who’d previously served about 15 years in prison for kidnapping his ex-girlfriend and a second woman at gunpoint, as well as escaping from jail, was released after he was charged with third-degree assault, a misdemeanor. But local attorneys made a strong case that he should have been charged with sexual assault and a second felony that would have allowed a judge to set bail.
None of these complexities came through in Sunnyside. “Stop the rapin’ of the women. The murders of the mothers,” the heckler shouted, drowning out Hochul with a thick brogue. “Young mother murdered because of no cash bail.” At other times, she simply yelled “law and order” over and over. It was hard to hear what Hochul was saying. Eventually, the crowd had enough.
“Go back to Ireland!” an older man yelled.
“I looked her up,” a white lady wearing a bandanna claimed. “You lie.”
“She’s a figment of your imagination,” the woman continued. “She was never alive.”
“This woman is dead,” the heckler responded accurately.
The exchange felt like a surreal exaggeration of the whole race. On one side, Zeldin and the Post talked about crime so loudly that Hochul couldn’t be heard. On the other, Democrats seemed unsure how to respond. When they did engage, it often seemed to backfire.
That night, Hochul went on MSNBC for what should have been a friendly interview. The anchor, Stephanie Ruhle, interrupted Hochul as she explained her efforts to protect the public. “Here’s the problem,” Ruhle said. “We don’t feel safe. You might be working closely with Mayor Adams. You might have spent a whole lot of money. But I walk into my pharmacy and everything is on lockdown because of shoplifters. I’m not going in the subway.”
“We already have homicides and shootings down dramatically from what they had been last year. Dramatically,” Hochul responded. “You know what’s up most? Grand theft auto because catalytic converters, because of the precious metal, are highly valuable.”
She added that the reason her budget had been late was because of how hard she pushed to amend bail reform. “I said I’m not leaving here until we deal with the repeat offenders—the people who keep taking things off the shelves in the drug stores every day,” Hochul explained.
Exchange here between Kathy Hochul and @SRuhle here.
Ruhle says NYers "don't feel safe" on the subway and people are afraid of the city becoming like SF.
Hochul responds ,"We'll never be San Francisco," saying homicides and shooting are down dramatically," since last year. pic.twitter.com/OLFKd869vl
— andrew kaczynski (@KFILE) November 5, 2022
Zeldin had bet long before that the general feeling of insecurity—no matter how many statistics were thrown at it—would get voters to the polls, and persuade some independents and even some Democrats to choose him for governor and others for the House. He was partly correct.
The defeats have set off a predictable series of post-election finger-pointing. In a thinly veiled reference to Adams, Rep. Alexandria Ocasio-Cortez told the Times that instead of “ignoring or even pivoting and commanding the narrative on crime and public safety, a lot of Democrats leaned into Lee Zeldin’s approach.”
Adams blamed New York’s bail laws for “destroying the foundation of our country” and costing Democrats’ the votes of many Latinos and Asians. “Public safety, housing, education. We cannot talk our way out of this,” he said on MSNBC. “We have to be real [about] what people are facing on the street.”
“Nope,” Ocasio-Cortez responded on Twitter. “The sooner we stop repeating false Republican talking points, the sooner we can flip these seats back blue.”
One side saw a messaging and organizing problem within the party. The other saw a policy failure and an opportunity to beat back those they view as fringe. Meanwhile, Republicans saw a five-seat victory in the House of Representatives. The Post saw a chance to go after fresh targets.
“Trumpty Dumpty,” read a post-election cover featuring the former president teetering on a brick wall. “Don (who couldn’t build a wall) had a great a fall.” Another featured more New Yorkers who remained on the street after getting arrested—sometimes repeatedly. One man was found to have beaten his wife; another pulled a gun during a road-rage incident. The reason for the Post story was who these assailants continued to work for: The New York Police Department.