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What’s Really Behind Efforts to Reform Bail Reform? A Familiar Theme

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Law enforcement officials have pushed for bail reform rollbacks (photo: Governor's Office)

The hyperbolic vitriol about bail reform in New York should be viewed in context – it is but one example of the ways those with entrenched power in the criminal legal system rebel against even the slightest diminution of, or threat to, their authority.

Despite a growing movement for change, police officers, prosecutors, and judges cling to their absolute power to arrest, prosecute, and adjudicate with scant concern for due process, equal protection, or basic fairness. 

Law enforcement representatives went on the offensive as soon as the reality set in that bail reform meant fewer people would be held at Rikers Island and other jails. NYPD Commissioner Dermot Shea penned an op-ed decrying the bail reforms and began lobbying in Albany for reforms of the reforms before the ink in the law books was barely dry. Shea’s Chief of Department, Terence Monahan, at precinct meetings with community members predicted an outbreak of violent crime. 

District Attorneys also rallied to defend their threatened prerogatives. While prosecutors are supposed to enforce the law, it seems they spend much time figuring out ways to circumvent it, particularly as it relates to the recent bail, discovery, and speedy trial reforms. Last year, Bronx District Attorney internal documents revealed trainings in techniques to overcome speedy trial rules. More recently, a presentation at the New York State Prosecutors Training Institute included ways to avoid the impact of bail reform.      

Perhaps the most telling example of prosecutorial unwillingness to cede even some control has been the outcry over having to provide the accused with speedy discovery of the evidence against them. It has been reported that the new obligation to comply with that fundamental constitutional right, a rule long recognized in virtually all other states, caused several prosecutors to resign.   

Complaints about bail reform and new discovery obligations are hardly the only examples of opposition to meaningful reform of the criminal legal system. The ongoing fight over public access to police officer disciplinary records is another example of organized resistance to reform. New York Civil Rights Law §50-a, known accurately as the police secrecy law, restricts public access to a police officer’s disciplinary records even when there are serious and credible allegations of misconduct or violence. Efforts to fully repeal §50-a and put New York State in line with the rest of the country are vehemently denounced by the NYPD.

Prosecutors have supported this police campaign too, in an indirect yet effective manner. Even with §50-a on the books, prosecutors have the power to address part of the problem and to avoid relying on police officers with dubious credibility. Last year, Gothamist/WNYC reporter George Joseph reported that the city’s elected District Attorneys maintain secret databases that track police officer dishonesty. In some cases, prosecutors have created “do not call” as a witness lists of certain police officers. And yet these lists had not been provided to the accused, or their lawyers, who were arrested by these very same police officers.  

Prosecutors have also organized resistance against other reforms that threaten their power. Consider the bipartisan legislative effort to create a Commission on Prosecutorial Conduct to review and investigate alleged prosecutorial misconduct. The bill’s stated purpose was to provide for a more transparent and just system. Prosecutors across the state denounced from the inception the very idea of outside oversight and claimed, without any hint of irony, that it violated their due process rights.

Nor is it only DAs and the NYPD who actively fight to reject reform of the criminal legal system. The courts, too, are determined to maintain the existing distribution of power, even if it means violating laws directed at limiting their actions. Two judges recently deliberately flouted the law by setting bail against the accused in circumstances explicitly prohibited by the new bail statute. 

On a broader level, mimicking law enforcement, judges have taken to airing their opinions in public, calling bail reform a threat to public safety and predicting a spike in crime. Ironically, as judges rail against the new bail laws and demand greater discretion over when and on whom they can set bail, they ignore the point that it was in large part their irresponsible exercise of judicial discretion that led to the need for bail reform in the first place. Rather than rebel against reform it would be more appropriate for the judiciary to express collective contrition for having jailed so many people who lacked enough funds to pay their way home.

The hostility to any expansion of rights for the accused is manifest not just in New York’s lower courts, but all the way up to the Court of Appeals. Professor Vincent Bonventre of Albany Law School catalogued what seems like a concerted effort by the majority of judges to reduce the number of criminal cases heard by the Court. Even more troubling than the Court’s disinterest in hearing criminal appeals is the overwhelmingly pro-prosecution voting records of most of its judges. In 2017 and 2018, excluding cases where the Court was unanimous, Judges Jenny Rivera and Rowan Wilson voted in favor of the prosecution in less than 30% of the cases, while the rest of the members of the court ruled in the prosecution’s favor between 70% and 98% of the time. In fact, one judge sided with the prosecution in 96% of the cases in 2018 and 100% of the cases in 2017.   

The Court’s unsympathetic approach to the rights of the accused is reflected in individual cases even more so than in the overall number of appeals denied. Luis Alvarez was convicted of brutal crimes committed when he was 19 years old. He was sentenced to 66 2/3 years to life – in other words, to die in prison. Years later, he challenged his sentence on the grounds that his appointed appellate lawyer failed to provide basic effective assistance of counsel by neglecting to challenge his sentence as unduly harsh and excessive. 

The majority of the Court was not troubled by the death by incarceration sentence imposed on a teenager, or the obvious incompetence of appellate counsel, and denied Alvarez’s motion. Judge Rivera in her dissent detailed the many defects in the appellate brief, including that it contained several one-sentence paragraphs, misspellings, grammatical and typographical errors, and lacked citations to cases in support of legal arguments. The entire brief was 20 double-spaced pages, including the table of contents, even though the trial lasted three months and yielded a 4,000-page transcript. In contrast, the prosecutors’ brief was over 175 pages. 

The majority of the Court minimized the many faults Judge Rivera highlighted (though noting that the brief was “somewhat terse, could have been better drafted, and is not a model to be emulated”), and ruled that Alvarez received effective assistance of counsel. 

Judge Wilson in his dissent, besides noting the “atrocious” quality of the brief, wrote about the man Alvarez had become and why it is wrong to prejudge the entire future of a teenager. Judge Wilson noted Alvarez’s positive disciplinary history in prison, his record of programmatic achievements, and his current medical condition – Alvarez’s cancer went undiagnosed until it metastasized, and he is now a paraplegic. Judge Wilson closed his dissent by asking how anyone would feel about the quality of appellate counsel if Alvarez was their son. You don’t have to be a legal scholar to know the answer to that question.

The outrage over bail reform reveals much more than outrage over bail reform. It exposes the entrenched nature of the criminal legal system as ferociously dedicated to maintaining absolute power and the status quo. While the criminal legal system is not unique among governmental entities intent on maintaining a brutal grip on power, the concerted effort to eviscerate bail reform provides clear evidence that all efforts to impose even a modicum of fairness and decency on the criminal legal system will face near pathological resistance.

Steven Zeidman is a professor of law at CUNY School of Law. On Twitter @SteveZeidman.

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