Before getting into anything of substance, let’s be clear up front: there was never going to be any reform. Not real reform. It was just a show to pacify the unwary, with a tweak here and there to give it the smell of change. So there wasn’t much to lose, as there was nothing really at risk.
But any decent Broadway play runs for a while. This one closed almost immediately after opening night. When Tyrone Howard allegedly murdered NYPD Officer Randolph Holder, the producers had all they needed to shut it down. When PBG Officer Nouman Raja shot Corey Jones dead on the side of the road, no one cared. Everyone was too busy applauding the reform show to notice.
They won the public. The show worked, and better still, they had a dead cop to put on their victory flag and march around.
Mayor Bill de Blasio, feared as the most progressive mayor ever, announced that it was time to fix the system that let cop-killer Howard back on the streets by making it harder for defendants to get bail. Yes, the same de Blasio who three months ago was screaming about reforming the bail system that killed Kalief Browder. That Howard’s being on the streets had nothing to do with bail didn’t get in the way. They just made it up, using post-hoc erroneous facts.
He was on the street. That, unfortunately, also is a fact. And the question is, why? And we know there were two crucial opportunities that could’ve changed the situation fundamentally, but didn’t in large measure because our state laws are not properly structured.
In October 2014, Howard was arrested and charged with felony drug sales. The judge in that case, like all New York State judges, could only set his bail based on the risk of flight. The judge was not able to consider the danger that Mr. Howard would be to public safety. It was literally by law not something that could be taken into consideration. So the criminal was able to post bail and again walk the streets.
Except he wasn’t out on bail, and there was nothing to indicate that he was a “hardened, violent criminal.” This is unadulterated nonsense, but who cares? We’ve got a dead cop, and that’s not going to waste. Every drug sale, no matter how small, is a felony in New York. It’s meaningless, but de Blasio knows that you won’t realize that, so he can make it sound horribly scary.
At the point that Howard was referred to drug court for diversion, he was the poster boy for the non-violent drug offender that we all tear up about. What he did afterward changes nothing about who he was before. But that requires people to think, to understand, and they hate doing that. It’s so much easier to be fed emotional lies and swallow them whole.
We believe it’s absolutely necessary to amend the state bail, and diversion statutes, and add the concept of public safety risk to the statutes, requiring judges to consider whether the defendant poses a danger to the community when deciding whether and how much bail to set. And that, by the way – and this is a shocking statistic – that is already the law in 47 states in this country. It is the law in the District of Columbia. It is the law governing our federal courts. Only New York State, Missouri, and Mississippi stand apart in not including this information and requiring its consideration. And the same requirement that the issue of public safety and the danger of the individual has to be considered by a judge in decisions related to the choice between treatment and jail.
Why yes, New York was slightly ahead of the curve on bail reform, on drug diversion, the very reforms that would be affected by the platitudes spewed at the press conference by law enforcement’s “Leaders,” by the President the next day. Puny reforms, at best, and yet demonized within hours.
But every Broadway production awaits its review by the New York Times, and the Times didn’t disappoint.
But the tragic circumstances of this killing should not lead anyone to draw false conclusions — that the judge acted irresponsibly, that too many criminals are being coddled, that drug-diversion programs and other criminal justice reforms are misguided, or that the system needs to tilt ever more toward harshness than toward humanity.
So the exact things that de Blasio did? Are you panning the play?
It is encouraging to see officials like Mr. Bratton and Mr. de Blasio rising above rage and reacting in a way both measured and realistic. On Friday, Mr. de Blasio called for two sensible changes to state laws. One would allow judges to consider public-safety risk when setting a defendant’s bail. The other would require judges to consider public-safety and flight risks when deciding whether a defendant is eligible for a diversion program.
On the contrary, the song and dance was magnificent, exactly what the Times would have them do, because judges have magical abilities to see into the future for that one in a million defendant who, given totally appropriate consideration up front, commits a terrible crime later. It’s not like judges are now incentivized to lock down every defendant lest some skeeving politician and clueless newspaper blame them for not having the backward ability to prevent future crime.
The East Harlem case shows how the system actually runs on feel-bad decisions. Should a judge choose to lock up a defendant to prevent the possibility of a future crime? Or take a gamble on saving him through treatment to help him break free of addiction and crime? Justice McLaughlin lamented that there are no crystal balls. Bail reforms may give the system better odds of making the right call — which is the best we can hope for.
So the food tastes like crap and there wasn’t enough of it? This may be one of the most irrational paragraphs to ever appear in a Times editorial. A judge makes a decision based on the known facts at the time. Every decision is a “gamble” in the sense that no one can predict the future, but keeping defendants locked up is always the easiest way to “prevent the possibility of a future crime.” Is that really what the Times hopes to accomplish? It’s clearly what de Blasio is calling for.
And now for a bit of nasty context: Under this regimen, Kalief Browder, the teen who was locked up for years pre-trial and, after his robbery charge was dismissed, committed suicide, would have been the very guy to stay locked up. Tyrone Howard, who had only low-level drug felonies, would have been the very guy to be released, sent to drug diversion, set free to walk on the streets.
What do you think about the “symbolic rhetoric and vague platitudes” now? Applause, applause. And the curtain comes down.