Even before the state’s bail-reform law takes effect Jan. 1, ending bail and pre-trial detention for most non-violent felonies and for all misdemeanors including robberies, where violence or its threat is an element of the crime, there’s reason for concern that the pendulum may be swinging too far against law-enforcement.
In some instances, the cause is inexplicable bail decisions by judges operating under the current law. Last month, a Bronx Criminal Court Judge released two men charged in separate shootings on their own recognizance even though they had a combined 21 arrests, many involving violence.
November began with a Manhattan Judge releasing without bail a man arrested on a fugitive warrant. Two days later, the Daily News reported, he attacked a Port Authority Police Officer, breaking his nose and damaging his eyeball, yet another Judge set bail at just $5,000.
Less than three weeks after Mayor de Blasio was crowing about approval of a plan to close Rikers Island and replace it with four neighborhood jails that could house just 3,300 inmates, he presided over a press conference at which top NYPD officials reported that homicides were up slightly compared to last year and robberies rose 16 percent in October.
Just as alarmingly, police arrested 82 juveniles on robbery charges last month—more than five times the number charged 12 months earlier. Earlier in October, the state’s Raise the Age law entered a new phase in which 17-year-olds are no longer held in adult prisons. That occurred even as violence committed by teenage detainees rose sharply in the year since 16-year-olds were transferred from Rikers Island to the Horizon Juvenile Center. The situation is bad enough that a Federal Monitor overseeing reforms characterized life at Horizon as a “culture of disorder that will be difficult to transform.”
The impression left by these developments, as we noted in this space just before the vote to close Rikers, should cause those clamoring for reform to pause and ask themselves whether they’ve moved prematurely and without thinking through the potential consequences.
Many of the changes were enacted in response to major system failures, as exemplified by the horrific treatment of Kalief Browder, who at age 16 began three years at Rikers—much of it in solitary confinement—on a dubious charge and wound up committing suicide at 22. But as disgraceful as the handling of his case was at all levels of the criminal-justice system, thankfully, such cases are rare. And unfortunately, more than a few of those arrested and then released without bail under the new law won’t be nearly as deserving of a break as Mr. Browder was.
But two developments harshly criticized by the Police Benevolent Association are not among the changes we believe are likely to prove harmful to the justice system. Both involve, in part, lying by cops: a ballot measure that was approved Nov. 5 increasing the powers of the Civilian Complaint Review Board, and the disclosure by Brooklyn District Attorney Eric Gonzalez to reporters of the names of seven officers his office will no longer call as witnesses because it has concluded they are not credible based on past behavior.
PBA President Pat Lynch charged that publicizing the identities of the cops “will destroy the careers of honest police officers and torpedo the cases against violent, gun-toting criminals—assuming his office bothers to prosecute them at all.”
But the degree to which lying by cops to bolster criminal cases has infected the justice system here was symbolized by the decision of Federal prosecutors in Brooklyn a couple of years ago to bring a case putting cops on trial for what has become known as “testilying.” The cops wound up being acquitted in February 2018, but the case served as a warning shot about just how pernicious the practice had become.
It won’t always take the form of framing a criminal suspect; sometimes it involves shading a few details, either to fill in blanks or provide justification for a search that ended with an arrest but did not arise from the legal standard of reasonable suspicion of criminal activity.
There are other prosecutors within the five boroughs who have compiled lists of officers they consider sketchy witnesses; Mr. Gonzalez is merely the first one to out them as untrustworthy.
Mr. Lynch is right: it will have the effect of harming their careers. But it became necessary, as did the CCRB measure, because for too long the NYPD looked the other way regarding testilying.
For all the PBA’s criticism of the CCRB—which has also been scorned by Police Commissioners who resent its intrusion on their prerogatives—a vocal union campaign against the ballot measure had no impact in a low-turnout election: the proposal was approved by nearly three-quarters of those who voted.
That is a message from the public: condoning lying to make cases undermines confidence in the system. As the NYPD braces for changes in other areas that may do more harm than good, its officers can’t be seen as less than honest or the whole system suffers.
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