Kalief Browder’s case was an exercise in failure at many levels, far too many for the passionate activists to grasp. Bail beyond his family’s ability to pay was one, but so was Speedy Trial, a dishonest prosecutorial sham and the judges who allowed it to happen, and a lawyer who let the case drag on. But passionate people need a poster boy, and he’s been picked, even though there is no suggestion that the deal in the works would have changed a thing.
Since his death, the movement to abolish cash bail has grown stronger, especially among the state’s urban politicians. On Friday, leaders in the state Legislature were poised to move forward with a plan to eliminate cash bail for most misdemeanors and nonviolent crimes while keeping monetary requirements or other conditions for violent felonies.
There’s a tradeoff that is buried in this description. At present, the sole basis for imposition of bail is the likelihood of a return to court. There is no prong for danger to the community, so a person accused of assault with a job and strong community ties will be released, while a turnstile jumper with a history of bench warrants may not.
But a plan to “eliminate cash bail for most misdemeanors and nonviolent crimes” sounds enticing. Of course, they could have done that any time they want, simply by prosecutors not seeking bail or judges not imposing unnecessary bail, but the reality that it failed to produce the outcome “many in New York” want causes them to demand a reform law to fix it.
So, what they’ve achieved is a second reason to impose bail, public safety, on top of the first reason, failure to appear.
The tentative deal would draw New York a step closer to a eliminating cash bail altogether, as California did last year. New Jersey has also all but eliminated cash bail, while New Mexico has minimized its use.
Notice anything missing from this paragraph, such as how those reforms are working out? No matter, since this “deal” that the headline says has happened, yet the body says “is poised” to happen, remains a mystery
Details still were being negotiated as part of the state budget, which is due Monday, but legislative leaders seemed confident they would pass major changes to the bail law, as well as measures to ensure speedy trials for the state’s enormous incarcerated population and to improve the handing over of evidence to defendants.
Senator Michael Gianaris, a Queens Democrat who sponsored one of the bail-reform proposals, said, “We are on the precipice of dramatic change that will bring justice to the vast majority of people incarcerated without a conviction.”
How wonderful to be on the “precipice of dramatic change.” But that’s a bit shy of details, inspiring though it may be. Then again, morally aspirational rhetoric seems to be a fully acceptable substitute for function these days.
Assemblywoman Latrice Walker, a Brooklyn Democrat who has sponsored a bill to reform bail, said the proposed legislation would also encourage judges to “use the least-restrictive measure possible in order to ensure a person returns to court.”
That was always the law, before they added a second reason to impose bail or detain defendants. To the extent they have anything to say about this “precipice of dramatic change,” Walker spills the beans.
The deal would eliminate bail for all misdemeanors, except those involving sexual misbehavior, and for nonviolent felonies, second-degree robbery and second-degree burglary, Ms. Walker said. Many low-level offenses also would be downgraded to desk-appearance tickets, meaning defendants would not be arrested before they appeared before a judge, she said.
Putting aside the hat tip to the current trend of distinguishing “sexual misbehavior” from all other crimes, as if nobody notices the facial sexism here, if all misdemeanors are to be bail free, there would be no reason for arraignments at all. Give everybody a DAT and let them come in when their case is on the calendar. Now, only certain charges are susceptible to DATs, and it’s left to police discretion whether to issue one or hold them for arraignment in court.
Is that the deal? Walker seems to say so, but everything else hinted here suggests otherwise.
Six Democratic prosecutors from the city and its suburbs — including liberals like Cyrus R. Vance Jr. in Manhattan, Eric Gonzalez in Brooklyn and Darcel D. Clark in the Bronx — wrote an opinion piece in The Daily News this week in support of ending cash bail, but only if the law was changed so that judges could order people detained “who pose a physical safety threat to others.”
These are the progressive District Attorneys of New York City, who claim they want to eliminate bail. So why then do their assistants keep asking for needless bail? What will change after this reform happens that couldn’t have happened at any moment already?
City judges released about three-quarters of the defendants who appeared before them in 2017 without bail, and 86 percent of those people showed up for their court dates, the same percentage as three decades ago, when far more people were held on bail, and well above the national average, a report by the New York City Criminal Justice Agency showed.
The impression given by the reform rhetoric is that the majority of defendants have bail imposed, and some vague number of them can’t make bail and are held. Detained defendants suffer significant consequences, loss of job, car, apartment, children. They can’t fight their cases. They are coerced into pleas to get out of jail, not because they’re guilty but because they would spend months, if not years, longer in jail to win than to lose.
In the past, there were commissions comprised of prosecutors, judges and even the occasional “official-type” defense lawyers who worked to arrive at viable ways to deal with a long list of problems we’ve known for decades plagued New York law. The work of these commissions was routinely ignored by the Legislature, and the problems persisted.
Now, the newly-elected social-justice legislators, who are clueless as to how the legal system actually works, together with activists who mean well but are grounded in simplistic fantasy fixes, appear to have come up with their own reforms. Maybe they make sense. Maybe they will work, even though they compounded the problem by adding a new reason to detain defendants who would otherwise be able to get bail. Maybe.
The devil is in the details, and thus far the only details available are lofty words. The only thing we know for sure is that if a woman accuses a man of “sexual misbehavior,” he had better settle in for the long haul as he’s not going anywhere.
So what’s your bet, a brilliant reform that definitely won’t have unintended consequences that make things worse for everyone because it’s based on social justice fantasy about marginalized victims, or a big splash that accomplishes nothing but at least doesn’t do much harm?
As you aptly describe the choices here, the lesser of two evils is still evil.
‘sexual misconduct’? ….so the working girls ain’t gonna get a break here?…Woke or not, NY gotta keep that pimp hand strong…. or does that misconduct thing only flow one direction?