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Bail Reformers Say Bill Bratton And Others Are Trying To 'Scare The Public To Death'
By
Christopher Robbins
Published Jan 13, 2020
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JB Nicholas / Gothamist
By
Christopher Robbins
Published Jan 13, 2020
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New York's bail reform laws have been in effect less than two weeks, but Republicans, law enforcement talking heads, and the city's tabloids have been spreading fear and misconceptions about what the new laws actually do.
"This will destroy the state of New York," state GOP chair Nick Langworthy told billionaire radio host John Catsimatidis on Sunday, the same day that both the New York Post and the New York Daily News ran cover stories purporting to show the "revolving door lunacy" of the new law. "It creates chaos and anarchy, and the criminals win," Langworthy said. "This has crippled law enforcement."
Former NYPD Commissioner Bill Bratton, who left public service for a lucrative career as a private security consultant for companies like Teneo Risk and Electric Guard Dog, told Catsimatidis that the bail reforms are "a disgrace."
"There was no discussion with the public safety experts in this state—the police, the judges, the DAs," Bratton said. "This is like the fisherman’s, uh, what do you call that when you catch the fish and you let them go again? How many chances do you want to give these characters?"
Marie Ndiaye, a public defender and the supervising attorney for the Legal Aid Society’s Decarceration Project, called comments like these "intentionally misleading."
"All those people who they’re saying are a danger to public safety or public health would have been out on the street if they could have made the bail set on them, and that’s if the bail was set on them," Ndiaye told Gothamist, noting that most people she sees charged with cases like DWI are not held on bail. "It’s not like we’re going from a system where everybody on all of these charges were held in the first place, or if they were held they couldn’t be out."
The current reforms prevent judges from setting bail on almost all misdemeanors and non-violent felonies, but violent crimes and some lower level charges that involve domestic violence are still bail eligible. Judges are required to consider a defendant's risk of not returning to court, and the least restrictive conditions for every defendant, including those accused of violent felonies that are still eligible for bail. But judges may also set supervised release requirements, including electronic monitoring.
Some lawmakers have suggested that the reforms be changed to allow judges to consider whether the accused is a danger to society or themselves before making a bail determination. New York is the only state in the country that prevents judges from taking public safety into account when setting bail or making pretrial conditions. But this principle didn't arise from the new bail reforms, it has always existed in the bedrock of state law, because bail is supposed to concern a defendant's likelihood that they will return to court, a defendant who is innocent until proven guilty.
A group of officials called the New York Justice Task Force, which included lawmakers, judges, prosecutors, defense attorneys, and police officials (including former NYPD Commissioner James O'Neill) wrote a report containing a series of recommendations to state legislators concerning bail reform, and they voted against recommending a public safety provision.
"The Task Force ultimately determined that although a court should not consider whether a defendant poses a threat to public safety, it should be allowed to consider whether a defendant currently poses a credible threat to the physical safety of an identifiable person or group of persons, such as in domestic violence cases," their report states.
"While the headline has been, ‘judges can’t consider public safety,’ I think that’s actually not in fact true," said Insha Rahman, an attorney and bail expert who is the director of strategy and new initiatives at the Vera Institute for Justice, a group that lobbied for bail reform. "Sure, judges are not supposed to overtly consider risk to public safety under New York’s legal provisions. They’re supposed to consider what will incentivize this person to come back to court. But in the cases we have real concerns about public safety—violent felony offenses, a number of other offenses where the charges themselves raise some concerns about public safety—the system hasn’t changed, judges can still set bail."
Ndiaye, the Legal Aid attorney, said that this is the kind of arbitrary discretion that led to massive racial imbalances that bail reform was supposed to address.
"All of these actors want the power to have discretion to incarcerate anybody who they feel should be incarcerated. That is the key," Ndiaye said. "They want to be able to look at a person’s case, look at their background, and make a decision as to whether they think this person should be in or not. That is literally the system we just had, where Kalif Browder sat in jail for three years."
After a spate of anti-Semitic attacks, Governor Andrew Cuomo has said that he wants lawmakers to add hate crimes to the list of offenses that are bail eligible. Rahman said it was a little too early to be talking about changes.
"We haven’t actually let these new laws bear out enough in order to see what impact they are actually having," Rahman said, though she added she would support an amendment that encourages judges to order mental health screenings in cases of hate crimes, or "other offenses that are driven by clear mental health issues or other kinds of aggressive behavior."
Rahman pointed to the case of Tiffany Harris, who was released after being arrested for allegedly assaulting Orthodox Jews in Brooklyn, only to be arrested a day later after being accused of punching a woman on Eastern Parkway.
"If there were to be any amendments at all, it should be an amendment that requires, when there is allegation of a hate crime or other offenses that are driven by clear mental health issues or other kinds of aggressive behavior, that there can be more of an encouragement for judges to say, these are the kinds of cases where you should be ordering some kind of mental health screening or screening for supportive services up front, perhaps to give judges less discretion than they have right now—a flag in these kind of situations.
"That could have been prevented if the first time she was arrested, the judge was like, 'Well, this is the kind of case where I need to flag this to impose more screening and services immediately,' as opposed to just releasing her and waiting for it to happen yet again."
Ndiaye said that the bail reforms have "blown the lid off of the fact that we have been using jails as a placeholder for everything," and that the status quo is threatened when that tool is taken away. A NY Post story on a man who was released after being charged with a series of bank robberies contains some interesting quotes from a police source:
The hope, one law enforcement source said, is that victimized banks complain — loudly — about the misguided reform. “Once the banks start complaining, hopefully the politicians will listen and change the law,” the source said.
"So this is where we used to send everyone who was homeless, everyone who has a mental health issue, if you have an addiction issue, we were just routinely sending these people to jail," Ndiaye said. "And I think now people are seeing, oh, if we can’t send these people to jail anymore, what are we gonna do? We’re gonna scare the public to death. No, what you should be doing is if I arraign a case with a client and I know right then that they have a mental health issue and they could benefit going to the hospital for a couple do days, why don’t you figure out a way to make that happen, instead of sending them to Rikers Island."
Ndiaye added that the benefits her clients are seeing from the bail reform are more subtle than the sensationalized cases.
"It’s not like somebody’s gonna get released and win a Nobel Peace Prize. We’re talking about people who can just be out. They can go to a job, a regular job. They can go to school and not be locked up in a cage subject to abuse and torment," Ndiaye said. "Or they can be at home, just doing nothing. Which we all take pride in! Those are not bad things, those are things we want people to be able to do. We want people to be free."
Tagged
Bail reform
bail
Christopher Robbins
Christopher Robbins is a New York City reporter covering transportation, affordable housing, local politics, and criminal justice. His work has also appeared in New York Magazine, The Village Voice and The New York Times. Chris is a graduate of Patrick Henry High School in Roanoke, Virginia, and enjoys biking to Fort Tilden in the summertime.
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