Fix-It-Feds

There are few jobs worse than being a member of Congress. One is being a New York City councilman.  At least a congressman gets to vote on laws that have an actual impact, even if they’re just one of 435 votes and have to spend every other waking second begging for donations. But a NYC councilman screams into the void, because the city council has essentially no power to do anything. Cool job if you can get it.

But one would suspect that someone elected to the NYC council, even from Queens, would have a small clue as to how government works. Apparently, that would give them too much credit. In an “exclusive,” the Daily News reports:

A Queens City Councilman is asking the Justice Department to investigate New York’s bail system, after the feds claimed it’s unconstitutional to keep poor defendants in jail because they can’t pay afford to pay bail.

The DOJ filed a friend of the court brief in a Georgia case last week arguing that it was unlawful discrimination against the poor to keep a man arrested for walking while intoxicated locked up because he couldn’t pay the fixed $160 bail for the offense.

Full stop here to point out just how much it sucks to be a NYC councilman. In the first two graphs of the story, the reporter, Erin Durkin, didn’t even bother to include the name of the councilman. Ouch.

In a letter to Attorney General Loretta Lynch and U.S. Attorney Preet Bharara, Councilman Rory Lancman said the city’s bail policies have many of the same problems.

“Thousands of low-level indigent defendants spend time on Rikers Island for being unable to make bail of $1,000 or less,” he wrote. “Rikers Island is populated primarily by poor people being punished for their poverty.”

Dear Councilman Lancman. Sit down, I have something to tell you and it’s going to make you sad: The City doesn’t have “bail policies.” The City has nothing to do with bail. In the State of New York, bail is determined by judges (the guys with the black robes). They act under state law, which is determined by the state Legislature, an august body of graft opportunity to which you have yet to get elected.

As the article properly notes, the issue in Georgia has to go with fixed bail schedules. At Fault Lines, a debate was held on its constitutionality between Andrew Fleischman and Chris Seaton.* But New York doesn’t use fixed bail schedules.

New York does not have fixed bail amounts for certain offenses like the one challenged in the Georgia case, but DOJ’s brief appeared to take a broader stand, saying “meaningful consideration” must be given to the accused’s ability to pay.

“Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment,” the brief said.

Lancman said New York’s “failures mirror many of the concerns outlined by DOJ’s brief.”

Well, no. Not even close. Under current New York law, the basis for fixing bail is risk of flight. That curmudgeonly conservative**, former Chief Judge Lippman, wants to add another consideration, threat to the community. That will serve to add to the reasons to impose bail, higher bail, exacerbating the problem.

While the outcome is that poor people will be unable to make bail, the call for the feds to “investigate” is one of those shit-for-brains idiotic ideas, used by people who were elected to office but still can’t get invited to dinner. Investigate what?

In New York, every defendant is brought before a judge within about 24 hours***, who hears the prosecution’s bail application, hears from the lawyer for the defendant, and makes a decision whether to set bail and, if so, in what amount. It’s left to the discretion of the judge, which is kinda how courts work.

That judges routinely set bail for no better reason than some n00b prosecutor asked for it, reading off an ECAB write-up which contains a cop’s assessment of the defendant’s very criminal conduct, a rap sheet which explains little of value, and an assessment by pre-trial services of the defendant’s community ties, which is primarily dependent on his having a job and somebody being at home when they called to verify his address.

On the defense side, it’s usually a Legal Aid lawyer who has 3 minutes to talk to his client in a cubicle in the courtroom, no opportunity to reach his family and verify his job (which is a dubious basis to assess the likelihood to abscond, given the unemployment numbers) and has to argue why this person arrested for public urination will not flee to a Caribbean island to avoid prosecution.

Nobody forces judges to fix bail when it’s ridiculously unnecessary. Nobody forces judges to fix bail in amounts that defendants can’t pay, even if there was a reason not to release them on their own recognizance.  And yet, they do. All the time. Judges can stop anytime they want, but choose not to.  Are you asking the feds to investigate judges for being lousy judges, for exercising their judicial discretion in a different way than you want them to? Does your city councilman power let you tell them how to decide motions too?

And the feds? The same feds who collect your phone calls, lie about Stingrays, conceal exculpatory evidence when prosecuting United States senators? Those feds? Suddenly, they’re the paragons of virtue to whom you turn to fix problems they can’t possibly fix?

Councilman Lancman, I agree with you, the bail situation in New York City is a fiasco, and indigent defendants sit on the Rock because bail has been needlessly set and the amount is beyond their reach. It’s crazy. But here’s the inside scoop. The judges setting bail are criminal court judges, either appointed by the mayor or elected by the people after kissing the ring of the Democratic party boss. You want them to set lower bail? You want them to ROR defendants? Me too!!!

Forget Preet. Forget Loretta. Try to get an appointment with Bill de Blasio, invite Joseph Crowley out for dinner. He may take your phone call. Ask them to tell their judges to stop setting bullshit bail for poor people. Or did you just want to get your name in the Daily News?

*For those who haven’t quite digested the concept of debate, it’s not that the lawyers debating necessarily believe in the position they’re given to argue (I know, you could never argue a position in which you didn’t believe, but that’s what lawyers do), but that they use their mad lawyer skillz to present both sides of the issue. In this instance, poor Chris drew the short straw.

**Since many will not realize this, former Chief Judge Lippman is extremely liberal.

***The law requires that they be brought before a judge within 24 hours or be released. This is routinely ignored.

4 thoughts on “Fix-It-Feds

  1. JimEd

    The National Forensics League objects to footnote number * with a calm, measured and reasonable tone.

  2. Patrick Maupin

    > …even from Queens, would have a small clue…

    Surprisingly, direct, substantial understanding of exactly how bad the government can be, and abstract theoretical understanding of how all the pieces fit together often don’t reside in the same individual.

  3. Froggy64

    3 minutes with a Legal Aid attorney … Luxury!! In rural Western New York you only get an attorney at arraignment if 1) your public defender office has applied for the right grant and 2) the judge deigns to inform the on-call public defender that there is an arraignment. Many judges don’t like having a public defender present because they may have to justify doing what the ADA tells them to do, or the public defender may question the legality of the judge’s the rule of thumb: “If I have to get up in the middle of the night to do an arraignment, the S.O.B. is going to jail.”

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