The DA’s Disingenuous Lament

The op-ed was signed by a passel of prosecutors, all holding themselves out to some greater or lesser extent to be “progressive” in their view.

By Darcel D. ClarkEric GonzalezMelinda KatzMichael E. McMahonAnthony A. Scarpino Jr.Madeline Singas and 

Of course, signing onto an op-ed isn’t the same as writing one, and so one should take these names with the same equanimity as the op-ed that follows.

We believe bail reform was necessary. No one should be held in custody awaiting trial simply because of an inability to pay bail when others accused of the same crime and with similar histories are freed.

It’s almost as if some invisible hand from on high handed down requests for the imposition of bail on defendants in arraignment parts without their knowledge, against their will. Except it wasn’t some invisible hand, and it surely wasn’t from “on high.” It was rookie assistant district attorneys cutting their teeth in arraignments with a note from intake ADA telling them to ask for bail from these very same “no ones.” Rarely has such a facially obvious steaming pile of bullshit been claimed.

But by putting out the emptiest of rhetoric to the masses yearning to re-elect them, these District Attorneys could soothe the fury of the simpletons and smooth the path to their real issue.

Dangerous individuals accused of serious crimes should not be able to buy their way out of jail.

Unlike any other state in the Union, New York’s bail law is limited to the purpose of securing a defendant’s appearance in court. That’s it. They are presumed innocent. The crimes for which they were arrested cannot give rise to any contention that they pose a threat of danger, a risk to the community. New York law provides no basis to detain a person because, it is argued, he may walk out of court and do harm.

With the exception of New York, every state, the District of Columbia and the federal government allow judges to exercise discretion with an eye toward protecting the public when deciding to hold someone before trial. New York should take this common-sense approach, making sure to provide safeguards against bias and abuse by maintaining a presumption in favor of release in all but the most serious offenses.

The public likes to be protected. The public hates it when someone in custody, whether for a murder or jumping a subway turnstyle, goes out and does harm. “You had them,” people cry, “and then you let them go and see what they did?” It’s a fair complaint, as no one wants to see anyone harmed. But then, that’s always a possibility, despite the offense for which someone has been arrested, and it’s similarly always a possibility that the fear is unfounded because the person arrested is innocent.

Dangerous individuals accused of serious crimes should not be able to buy their way out of jail.

See what they did there? This is where the spin of reform activists is co-opted by the prosecutors. While the argument works at the bottom rung of the bail ladder, that people are held in custody on needless bail in amounts that would seem trivial to some but sufficiently out of reach to others to hold them on the Rock for years, these are the people these prosecutors claim they believe should be free.

After all, a petty theft with a weed prior and a subsequently vacated warrant for a missed court appearance is the sort of argument that gives rise to $1000 bail. They say they believe this defendant shouldn’t be remanded? So don’t seek bail. And, of course, there are judges in the room too, who don’t have to impose bail, but nobody seems to remember they have a role to play in all this.

But if a person charged with a more serious crime, for which more serious bail is set such as the $2 million for Harvey Weinstein, the posterboy for all that’s wrong with the world, then he’s “buying his way out of jail.” Except bail was set, and bail was posted. Isn’t that how bail is supposed to work? And while Weinstein is now convicted and remanded without bail pending sentence and appeal, he was presumed to be just as innocent as anyone else up until the jury found him guilty.

No one should be surprised that the New York district attorneys have latched onto the reformers’ simplistic one-size-fits-all mantra distinguishing good from evil defendants. It’s been going on for a very long time, a shallow spin for reform followed by it being flipped on its head to be used for the opposite purpose.

So these deeply empathetic district attorneys, whose minions were the ones requesting bail all along on the poor who couldn’t muster the grand needed to walk free, now join the Kumbaya chorus to cry for the poor but demand remand for the rich? Introducing a “dangerousness” element into bail is what they’re after.

If they can get enough useful idiots to believe this won’t become the solution, algorithms notwithstanding, to producing the same jail pops as before, they can achieve a worse bail law than New York ever had. And they could pull it off by using the words of rationalization that the reformers hold dear, indulging the fantasy for their own aims.

3 thoughts on “The DA’s Disingenuous Lament

  1. Anthony Kehoe

    I’ve watched many seasons of Law and Order and LO: Criminal Intent. Are you saying all those “duh dunnnnn” bits in the courtroom arraignments weren’t real life? Seriously, though, a large percentage of the population only hears about “bail” on TV or through potentially biased third party accounts. This op-ed will probably work fine.

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