“When did you turn into such a Republican?” a close friend asked me over lunch Jan. 7.
Actually, I’m what in our native Brooklyn is called a “freakin’ liberal,” but my friend was reacting to my critique of the early days of bail reform in New York. An attorney specializing in appeals who handles some criminal-defense cases, he was making the argument that the changes approved last year by the Legislature and signed into law by Governor Cuomo as part of the state budget deal were a needed corrective in a system that had been tilted in favor of prosecutors.
I responded that changes had been needed; just not this particular group as carried out in the first week of the year. He made the same case put forward by Public Advocate Jumaane Williams a couple of hours earlier: that the system had been rigged against poorer people when bail for a minor offense could be set at $3,000, often consigning an accused person of modest means to jail pending what would likely be a long wait for trial, while someone with more money or well-heeled family or friends could easily post that amount and return to their normal life—including their jobs—in the early stages of the case’s adjudication.
The Khalief vs. Harvey Case
That figure happened to be the amount that the family of Khalief Browder had been unable to cobble together during the three years he spent at Rikers Island on dubious charges that were dropped only after excessive delays by then-Bronx District Attorney Robert Johnson that were abetted by several judges, including the woman who later replaced him as DA, Darcel Clark.
Standing alongside Khalief’s brother, Akeem, Mr. Williams contrasted the then-16-year-old’s long stretch at Rikers—where he was mistreated by fellow detainees who were gang members as well as some correction officers—for allegedly stealing a book-bag, while movie producer Harvey Weinstein, because he was rich enough to post $1 million bail, has remained free while being accused of rape or sexual abuse by more than 100 women.
It was an argument that was impossible to refute. Some of the speakers at the press conference—and other defenders of the new bail standard—contended that egregious cases of criminal suspects being released during the first few days that it was in effect did not warrant having state legislators roll back the changes. But the logic for waiting a while before revisiting bail reform hinged on such cases largely disappearing.
And the illogic behind the release of some of those who had been arrested for crimes involving varying degrees of violence suggested that the pendulum had swung too far. How else could you account for a judge having released without bail Frantz Fortune, who had been accused for the second time of beating up and choking his girlfriend?
New York is one of just three states in which judges are not required to consider the danger an individual might pose—either to a particular individual or the public as a whole—in deciding whether to set bail. It was why Criminal Court Judge Bruce Wright—whom the then-Patrolmen’s Benevolent Association derided as “Turn ‘em Loose Bruce” when he twice set bail at just $500 for a man accused of shooting a cop in the early 1970s—had that ruling upheld, as well as another one in 1979 when he released on his own recognizance Jerome Singleton, who had been charged with slashing the throat of a decoy Transit Police Officer, Robert Bilodeau.
In countermanding another judge who had ordered that bail be set at $100,000 in that case, Judge Wright noted that Mr. Singleton had no previous criminal record and strong community ties, and pointed out that bail was intended simply to ensure the appearance of the accused in court rather than punish someone who had yet to be convicted. All this was correct, but it was also true that for a four-year period in between those controversial rulings regarding men who had done severe harm to police officers, Mr. Wright had been exiled to Civil Court.
The city’s Chief Administrative Judge at the time of that transfer, David Ross, denied it had to do with Judge Wright’s bail policies, and the judge was moved back to his Criminal Court role before his lawsuit seeking reinstatement there went to trial. But it seemed common sense to conclude that moving Judge Wright off the criminal bench was motivated by his ruling common sense out of order in making bail decisions that were bound to stir public outrage, even if they were applauded in parts of the black community where he was perceived as a counterweight to the injustices of the system during that era.
A Secret Weighing of Danger?
Arnie Kriss, an attorney who was a prosecutor for part of that period and later became Deputy Commissioner for Trials in the NYPD, said in a Jan. 9 phone interview that absent a requirement that judges consider the safety issues that may be posed by releasing someone without bail, the only questions at issue were, “Does a defendant return to court [for subsequent hearings] and is he a flight risk?”
But, he added, “Does a judge in the recess of his mind decide this is a dangerous individual? Probably.”
My friend from our days at Brooklyn College, when Steely Dan’s ode to revolving-door justice, “Do It Again,” had not aged enough to be Classic Rock, said that before the new standards took effect Jan. 1, judges were prone to set bail on the high side in any case involving violence because they didn’t want to be barbecued in the tabloids if someone who got out on low or no bail wound up committing a murder or rape.
He speculated that given the change in tenor that brought about the end of cash bail for most offenses, as well as the arguably-more-significant reforms involving what prosecutors must disclose to defense lawyers and how soon, judges might initially be overly lenient because they were now more worried about “losing their jobs” than winding up a target of the New York Post editorial board.
But you don’t need to share the Post’s ideological agenda to be stupefied by the handling of the case of Tiffany Harris, who slapped three Orthodox Jewish women in Crown Heights while allegedly shouting “F.U. Jews!” yet was released without bail, then the following day punched another woman while her two small children looked on and was turned loose again. It took her pinching a social worker on New Year’s Eve and the intervention of Mayor de Blasio—who in a turn on the old cliché was a progressive being mugged by the media—before Ms. Harris got a well-earned detention for psychiatric evaluation.
Amid the rising outcry over cases like these, there was a counteroffensive arguing that critics were conflating the changes required under the law with the separate issue of dealing with mentally ill people with violent tendencies.
A Secondary Issue
What they were gliding past with that claim was that for the average law-abiding citizen, it didn’t matter whether those turned loose following violent eruptions faster than you could sing, “You go back, Jack, do it again” were bad people or emotionally disturbed ones. Whichever the case, they posed a threat to public safety.
Some of the officials at the press conference led by the Public Advocate argued against amending the bail-reform law based on “dangerousness.” Upper East Side Assemblyman Dan Quart said using that criterion would produce a double standard in which “the privileged, those with money and power” would get breaks that wouldn’t be extended to those living “north of me in East Harlem.”
Tiffany Caban, who narrowly missed gaining the Democratic nomination for Queens District Attorney last summer, raised the rhetoric a notch by declaring, “People are deemed dangerous and put behind bars simply because of what they look like and what ZIP code they live in.”
But it would be hard to find reasonable people who would argue that those like Frantz Fortune, Tiffany Harris and Nathan Panchoo, who was freed without bail after punching a woman in the face and beating her with a stick while robbing her of $220, hadn’t broken through the threshold of dangerousness to varying degrees.
And Ms. Caban stated during a campaign debate last year that Rikers Island should be closed immediately but she did not want any detainees then being held there being shifted to the jail in Queens that is among those in four boroughs that are expected to pick up the slack. That hardly gives her much moral authority to discuss who should be locked up for the public good even before they are convicted of crimes.
Sensibilities like hers seemed to figure prominently in the changes to both the bail and discovery processes. The legislation that resulted runs heavier on crusading zeal than on guarding against pitfalls that could produce problems just as severe as some of the excesses committed by prosecutors and cops that stoked the push for dramatic reforms.
What Made Andy Go Along?
But if the shift in the State Senate from a power-sharing arrangement between Republicans and eight breakaway Democrats to a Democratic majority driven by progressive ideals explained how the legislation was crafted, it didn’t account for why Governor Cuomo had gone along.
He has wielded his veto pen on 167 occasions for bills approved last year by the Legislature that made it to his desk. One reason he cited on measures, including one that would have restored the Equal Protection Provision for school-bus personnel in New York City, was that it potentially would leave the state liable for added costs that could arise.
The changes in the discovery process have left local DAs scrambling to meet new requirements for turning over information about cases against criminal suspects to defense lawyers. In one instance, Manhattan DA Cy Vance postponed bringing charges against an allegedly drunk driver in a fatal hit-and-run because of uncertainty he could produce the information required within the 15-day timeframe that begins with an arraignment.
Mr. Kriss, while praising the new discovery standards, said they represented a variation on the theme of handing someone an unfunded mandate that Mr. Cuomo cited in the EPP veto message.
“I think they put the weight on the local municipalities to pay for this rather than giving financial resources to help meet the legal mandate” by hiring additional staff, he said.
That was not the only problem—nor the most-serious one—with the changes regarding disclosure, Mr. Kriss continued. Under the old standard, an accuser’s name would have been known to a criminal defendant because it appeared on the complaint against that person, he explained. That was not true of other witnesses until now, he said, adding that their names and other pertinent information including addresses and phone numbers should not be turned over to defense lawyers, and DAs should be able to “routinely ask for” their anonymity to be preserved prior to an actual trial.
A lobbying group for District Attorneys, as well as individual DAs and judges, have expressed concerns about portions of the criminal-justice reform package for months, and their objections would not have been a foreign language to Mr. Cuomo, who logged some time as an Assistant District Attorney in Manhattan under Robert Morgenthau.
Likes Legislation Messy
Over his first nine years as Governor, he has shown a willingness, if not a preference, for allowing major initiatives that have little to do with the state’s finances to be dealt with in budget bills that are generally agreed to in the late hours of the first day or two of April, with some legislators and the rest of the universe that pays attention to the work coming out of Albany needing days or even weeks to figure out some of the more-important changes.
Mr. Kriss said such last-minute flurries are “not an ideal way to deal with issues this big.” The Governor, however, seems to operate on the theory that it is better to get something approved and then correct its flaws later than to produce well-conceived deals that might be derailed if they get too much sunlight before votes are taken. Among the products of this method of operation was an enhanced gun-control bill that initially would have restricted the right of retired cops to retain their service weapons because of the number of bullets they could fire, and an unfavorable calculation under a pension bill regarding time employees spent on military duty while working for the state or its municipalities.
Mr. Cuomo’s dad, Mario, during his 12 years in office described his governing philosophy as “progressive pragmatism.” Andrew, in his State of the State speech Jan. 9, offered a slight twist, describing himself as a “pragmatic progressive.” Beyond avoiding outright stealing from his late father, the reordering fits the Governor, whose pragmatism obscured what progressive instincts he possesses for much of his first term.
It’s conceivable he didn’t want a budget deal to be delayed by a drawn-out battle over the criminal-justice changes. It’s also possible that, after seeming at times overwhelmed by the leftish tilt of the Legislature once Democrats got their huge majority in the Senate to augment similar dominance in the Assembly, he decided it might be better to let the reforms take hold and expect a reaction would quickly follow. That would put pressure on Democratic Senators from places like Long Island and the northern suburbs getting enough heat in their districts at the start of an election year to produce corrections. This is, after all, to borrow from the Governor’s taste for alliteration, a politician with a Cuomovellian craftiness.
DAs Undermined Themselves
Hindered though some legislators may have been by ideological blinders, they weren’t wrong about the need for change in the criminal-justice system. The excesses by the Brooklyn District Attorney’s office, particularly during the 24-year tenure of Joe Hynes, and one runaway Detective have been well-documented. So was the mix of laziness and incompetence in The Bronx during Mr. Johnson’s tenure as DA.
More recently, revelations about large-scale questionable conduct in Queens under the 28-year reign of the late Richard Brown have bubbled to the surface, with lawsuits brought accusing the late DA of an “office policy that was indifferent to misconduct and rewarded prosecutors for ‘winning’ cases.” On the day last November that Melinda Katz was elected DA, the prosecutor who held the job on an acting basis after Mr. Brown’s retirement last spring, John Ryan, was deposed in one of those suits involving three men who were wrongfully convicted, with two of them spending a combined 30 years behind bars for murder, according to the Queens Daily Eagle.
Gothamist reported early this year that more than a dozen high-ranking prosecutors from the office had been criticized by judges for serious transgressions that led to mistrials and wrongful convictions that were later vacated, yet received pay raises and promotions in the wake of those admonishments, with “only a handful” receiving discipline.
But past misconduct that emanated from the upper reaches of the system does not require as restitution abuses to the benefit of the accused.
Mr. Kriss said that the showing by the Legislature of dissatisfaction with the old way of doing things could have the effect of limiting the pull in that discredited direction even as the reforms are modified to better reflect the public good.
Restrictions placed on judges against setting bail except in violent felony cases, he said, meant that to a large degree, “Judicial discretion has been eliminated.” That was a mistake when it came from the opposite end of the political spectrum with the setting of “mandatory minimums” for certain crimes, and this effort is just as wrongheaded. In essence, Mr. Kriss said, two of the three branches of state government, in the form of Mr. Cuomo and the legislators who approved changes in that area, “have removed from a co-equal branch” a key power. “The judges who sit atop this system have to use common sense, fairness and understanding.”
And that, he said, does not extend only to the accused: “You cannot disregard the victims and the witnesses.”
As long as that discretion was restored, Mr. Kriss continued, “As far as cash bail, the Legislature is right. Nobody should go to jail because they’re poor. We’ve gotta correct these cases where people have been incarcerated because of indigency.”
While stressing the need to protect witnesses, including relocating them if necessary during and after trials of violent suspects, he said that once provisions were made in that area, the greater pressure placed on prosecutors to turn over information to the defense at a far-earlier stage in cases was a positive step that would allow defense attorneys to make more reasoned judgments before agreeing to plea bargains. “This is not a baseball game where you run up the score on the other side by withholding evidence,” Mr. Kriss said.
“The real question,” he continued, “is why were these issues not considered before the law was enacted?”
He then offered an answer: “Maybe they rushed to do it. The system has to work out the kinks. Eventually, they will.”
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