Gotham Gazette Thu, 25 Feb 2021 02:37:34 +0000 Joomla! - Open Source Content Management en-gb (Webmaster) City's Supervised Release Program Has Positive Impacts Without Increases in Missed Court Appearances or Rearrest Rates, Report Finds 3 report positive impacts

Mayor de Blasio makes an announcement (photo: Michael Appleton/Mayor's Office)

Defendants in New York City's pretrial supervised release program are no more likely to miss court than people who have bail set and are not rearrested at a higher rate, according to a city-commissioned study by MDRC's Center for Criminal Justice Research being released Thursday.

The research, contracted by the Mayor's Office of Criminal Justice (MOCJ) and the Mayor's Office of Economic Opportunity with funding from the Manhattan District Attorney, comes at a time when some city officials, including Police Commissioner Dermot Shea, have blamed a months-long spike in gun violence in large part on recent changes to the state bail law that increased reliance on alternatives to incarceration, like supervised release.

“You hear terms such as supervised release right now, that is a fallacy. There is no supervision. There is just release, and you are seeing the repercussions of that across the city,” Shea said in June.

MOCJ officials say the new findings vindicate the program. "I think being able to show that the program is just as effective as bail in ensuring return to court and also ensuring that folks are not being rearrested at a higher rate is really exciting," said Miriam Popper, the executive director of MOCJ's Office of Pretrial Justice Initiatives, by phone.

According to Popper, before supervised release, judges for the most part had two options at arraignment: they could set bail, a monetary condition for returning to court, or they could release the defendant on their own recognizance. "This evaluation has showed that adding a third option of support and supervision in the community was able to meet the goals of the New York State bail statute...just as effectively as a monetary condition," she said, "which as we know can often lead to an unequal system for those without financial resources and those with."

But while supervised release successfully diverted some candidates from having bail set without meaningfully impacting court appearances, the data shows it also led judges to assign supervision to defendants who would otherwise have been released on their own recognizance, a trend known as "net-widening" and viewed unfavorably by criminal justice reformers. The city and the nonprofit providers of supervised release programming say they are working to prevent net-widening from further ensnaring people in the criminal legal system, but defense attorneys are concerned by the findings.

Supervised release, a program first piloted in New York City in Queens in 2009 and expanded citywide in 2016, allows a defendant to remain in the community while they await trial under the condition that they follow a personalized plan of check-ins with a case manager and other service providers. Participants are often connected with services like employment training and housing support. The program has been lauded by community-based organizations as an effective and more just approach to treating those presumed innocent and ensuring defendants return to court, while also strengthening community ties.

Enrollment in supervised release increased the percentage of cases that were dismissed by roughly 10 points, while reducing the percentage of guilty rulings by 11 points, the study found. The analysis lends credence to the theory that the threat of being incarcerated with or without bail incentivizes defendants to plead guilty in order to be released.

The study also found that the program's impact did not vary across different racial, ethnic, or age groups, but "had stronger effects" on bail rulings and pretrial detention for felonies than misdemeanors, and for cases in Manhattan versus the Bronx, Brooklyn, or Queens.

Over the course of the study period from May 2017 to January 2019, defense attorneys sought supervised release for only a small portion of the roughly 287,000 defendants who were arraigned after a custodial arrest (this does not include people who received desk appearance tickets to be arraigned at a later date).

Seventy-two percent of arraignments (over 200,000) included charges that would've made the defendant eligible for supervised release, but only about one in ten of the eligible defendants were screened during the 20-month period, the study shows.

"The main explanation for this pattern is that defense attorneys opted to have their clients screened for SR only when they believed them to be at risk of having bail set, otherwise preferring to preserve their chances for being released on their own recognizance (ROR)," the report states.

When defense attorneys did offer the option of supervised release at trial, judges in 58 percent of cases assigned it. Those that weren't assigned to supervised release were just as likely to have bail set as be ROR'd -- roughly 20% each.

Despite what the report identifies as the "gatekeeper" role of defenders to prevent net-widening, MDRC's modeling found that about 44 percent of people on supervised release would have otherwise been ROR'd. About the same percentage, 45 percent, would have received bail.

Reforms passed in 2019 and 2020 eliminating bail for most non-violent felonies moved that gatekeeper role from defense attorneys to judges, who now exercise greater discretion in setting pretrial conditions, according to Popper.

"What that means now is that it requires more training on our part, a really close eye on what the outcomes are and what is happening," she told Gotham Gazette.

Aubrey Fox is the executive director of Criminal Justice Agency (CJA), the nonprofit that first piloted the supervised release program in Queens and interviews every defendant as part of an assessment to determine the likelihood they will return to court. He said CJA's recommendation following the assessment, while non-binding on judges, can help ensure the program captures the right participants because guidelines call for individuals who are not eligible for bail and get recommended for ROR to receive it.

The MDRC report's authors point out that with the relatively small number of participants during the study period, few defendants were caught in this process.

But defense attorneys say it's more serious. "Our perspective on that and what we've seen is that judges and prosecutors don't in any way recognize that there is a harm to unnecessarily placing our clients on supervised release," said Libby Fischer, the managing attorney of the criminal defense practice at the Harlem-based Neighborhood Defender Service, in an interview.

"There are entire categories of cases where the DA's office asks for supervised release even though the cases are misdemeanors, even though the clients have no record," Fischer said. "And since the judges can't see or don't see the negative consequences of putting large swaths of communities of color under court surveillance, they set supervised release when it's asked for."

"If the request had been for bail, in old times, they would've understood the negative consequences and ROR'd the client," Fischer added.

The study also found that supervised release increased the average total time before trial by about two months (from 86 to 143 days) and doubled the amount of time spent in the community from 64 to 128 days. The percent of defendants who received desk warrants (which the report considers a good proxy for missed court appearances) increased from 24 to 34 percent, a finding the study called statistically insignificant because of other factors that created uncertainty that these outcomes "aren't just the result of chance," explained Melanie Skemer, the study's lead author.

"In a lot of alternative-to-detention programs, what ends up happening is they have the so-called 'supervision effect,' which means that people fail at a higher rate because they are being watched more closely," Fox said.

"The really remarkable thing about supervised release is that -- I think mostly because of the skill of the social workers who work on the projects and the kind of ethos of the program -- the program managed to avoid that pitfall of well-intended but creating unintended consequences of penalizing people more," he said.

Popper said supervised release employs a "graduated response" model that aims to provide a "light touch" whenever possible. "If someone comes into the program who is lower risk and might have otherwise been released on their own recognizance, unless otherwise assigned by the judge, they would be put on a low level of supervision," Popper said.

"While the type of people who are put into the program is really up to the judges at this point, there is a lot we can do within the program, such as these policies, to ensure that being in supervised release does not lead to deeper entrenchment in the system," she said.

"Proportionally, the estimated increase in time at risk is far greater than the estimated increase in bench warrants,” the report states. “Hence, when accounting for the time at risk of pretrial failure and the increased number of opportunities to miss court appearances, enrollment in SR does not appear to have increased failures to appear to court appreciably, if at all."

by Ethan Geringer-Sameth, reporter, Gotham Gazette

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City's Supervised Release Program Has Positive Impacts Without Increases in Missed Court Appearances or Rearrest Rates, Report Finds Wed, 23 Sep 2020 04:00:00 +0000
After Intake Pause, City's Supervised Release Program Set for Large Expansion 5 justice system public

Four New York City District Attorneys (photo: John McCarten/City Council)

After a four-month hiatus as the courts struggled to go virtual amid the coronavirus outbreak, New York City's supervised pretrial release program is taking new clients again in all five boroughs.

Supervised release, established as a middle-ground between bail and release on recognizance, allows defendants to return to their communities before trial, under the watch of a case manager who checks in regularly, and also links the client to social services. The program has been lauded by some elected officials and prosecutors as an effective tool to ensure defendants make required court appearances and has been a growing part of the city's decarceration effort over the past decade, particularly in recent years.

But when the pandemic forced court proceedings to go online in March, supervised release intake grinded to a halt. Still, funding for the program almost tripled in the recently-passed fiscal year 2021 city budget and now judges in all five boroughs are again taking up the option at arraignments. Throughout it all, the 3,000 existing participants continued in the program using remote check-ins instead of on-site ones, while the city jail population has dropped to approximately 3,900 as of July 3, down from a daily average of over 8,300 in 2018 and about 11,700 in 2013.

"Supervised release is a crucial part of this administration’s ongoing efforts to reduce the city’s jail population," wrote Miriam Popper, who oversees the initiative as the executive director of Pretrial Justice Initiatives at the Mayor's Office of Criminal Justice (MOCJ), in an email. "It is important that attorneys, judges, and defendants have this option, particularly during this public health crisis, when we are trying to decrease the number of pretrial people in city custody."

In the scheme of New York State's pretrial statuses, supervised release falls somewhere in the middle in terms of how restrictive it is for the defendant -- remand to jail without the option of bail being the most restrictive and release on recognizance being the least. It still places some obligations on the defendant, like checking-in with case managers and creating an independent living plan, but provides greater freedom than in bail cases, where returning to court is conditioned, in part, on a desire to become financially whole.

Supporters of the program say it’s a constructive tool, relying on relationship- and community-building to not only encourage court appearances but to help foster better outcomes for clients after trial.

"The whole idea is to take people who are most often disconnected from the services they need to rebuild or reimagine their lives and, through supervised release, get them connected to those services," said Stanley Richards, executive vice president of The Fortune Society, which provides housing and a wide variety of other supports to individuals in the program.

"Supervised release is sort of the safety net that continues on with people throughout the adjudication of their cases to get them the services," he said.

First piloted in Queens in 2009, then in Manhattan in 2013, Mayor Bill de Blasio announced the initiative would expand citywide in 2015, with a $13.8 million investment from Manhattan District Attorney Cy Vance's asset forfeiture coffers.

“There is a very real human cost to how our criminal justice system treats people while they wait for trial,” de Blasio said in a 2015 statement. “Money bail is a problem because – as the system currently operates in New York – some people are being detained based on the size of their bank account, not the risk they pose. This is unacceptable. If people can be safely supervised in the community, they should be allowed to remain there regardless of their ability to pay.”

As part of the same announcement, then-Police Commissioner Bill Bratton praised the initiative as a public safety tool. “This program moves the city towards a more fair and equitable criminal justice system by decreasing unnecessary detention for those individuals awaiting trial, while more accurately assessing public safety risk and the supervision necessary to prevent people from reentering the criminal justice system,” he said in a statement.

Court appearance rates for supervised release participants are similar to cases where bail is set and where defendants are released on recognizance. Between March 2016 and March 2019, the court appearance rate for the 12,262 participants was 88 percent citywide, the same as releases without supervision, and just below the 91 percent appearance rate for bail cases. (The boroughs with the highest court appearance rates for supervised release were Manhattan and Queens, with 92 percent each, where the program has been running for longer.)

Last year, in anticipation of changes to the bail law, Vance invested another $100 million to be spent over two years -- coupled with additional city funding -- to drastically scale up the program.

In the city's current Fiscal Year 2021 budget, passed July 1, $117.5 million has been allocated to supervised release, including $50 million from Vance, a 270 percent increase over the fiscal year 2020 budget, according to a New York City Council spokesperson (a spokesperson for MOCJ said contracts are still being finalized and the final budget may be slightly smaller than the Council's figure). The city expects to triple or quadruple participation under the expansion, according to a City Hall press release announcing the new funding last year.

And it appears to be on track. In all of 2019, 641 defendants in Manhattan were released pretrial under supervision, compared with 1,162 in the first six months of 2020, according to Vance's office, even with the pandemic slowing the program.

"In a way, COVID kind of buried the lead," said Aubrey Fox, executive director of the New York City Criminal Justice Agency, which contracts with city government and first piloted the program in Queens. "This is like the quickest scaling-up process that I've experienced in my career."

"The increase in the city budget was in response to the new needs created by the State's bail reform law," Popper wrote in the email to Gotham Gazette. "Supervised Release has now expanded its eligibility to anyone pretrial, making an important set of resources available to a sizable new pre-trial population."

"The expanded Supervised Release will continue to utilize community-based resources, rather than law enforcement, to help get our clients back to court," she said.

But the changes to the bail law require judges to select the "least restrictive" appropriate pretrial status. With most misdemeanors no longer eligible for bail, supervised release is actually the most restrictive option in many cases.

"We don't actually want people to be ordered to supervised release if they don't need to be," said Mike Rempel, director of jail reform at Center for Court Innovation, which runs supervised release in the Bronx, Brooklyn, and Staten Island. "We don't want to over-supervise people who can show up at their court dates without the supervision."

MOCJ contracts with New York City Criminal Justice Agency and two other nonprofits to administer the program: Center for Court Innovation; and Center for Alternative Sentencing and Employment Services. The organizations use a risk assessment tool to determine each defendant's likelihood of returning to court and make a recommendation to a judge.

In supervised release cases, defendants are connected with a case manager from one of the three contracted organizations. The organizations in turn work with other providers, like Fortune Society, to connect them with a range of social services. Typical supportive work includes connecting participants to public assistance, helping them enroll in substance abuse treatment programs, or helping them find housing, employment, and schooling.

While checking in with a case manager and the frequency of the check-ins is mandated, other aspects of the program are voluntary.

"It's not meant to be a law enforcement-heavy approach to supervision," Fox said. "There are requirements, but the idea is to create this relationship between the individual who has been assigned to the program and their case manager."

When the coronavirus pandemic hit New York, court administrators struggled with the technical element of ensuring that confidential conversations between defendants and MOCJ's court representatives could continue to take place at arraignment, once those proceedings had moved to a digital format.

From March 17 to mid-July, the New York State Office of Court Administration (OCA), in consultation with MOCJ, suspended new client intake, while supervised release providers continued to serve roughly 3,000 current defendants through remote contact.

Around the same period, gun violence in the city skyrocketed. And more recently, between July 5 and August 2 shootings increased 165 percent compared to the same 28-day period last year, according to the NYPD.

De Blasio and Police Commissioner Dermot Shea have maintained the increase in shootings and murders is in part the result of suspended court operations. Court administrators, district attorneys, and public defenders have all refuted the claim, which is based on the idea that with court capacity limited, violent and crime-prone individuals are returning to the streets without the full accountability of the criminal legal system. Lucian Chalfen, a spokesperson for OCA, called the claims "at best totally factually incorrect and at worst an attempt to shift the blame for an increase in street violence," and prosecutors have insisted that arraignments have continued.

In the first quarter of 2019, the last period data is available, 8 percent of supervised release participants were rearrested for a felony -- which would include gun charges -- while awaiting trial. MOCJ did not provide comparative rearrest data for bail and release on recognizance cases and OCA directed arrest inquiries to the police department, which did not respond to requests for comment.

"Anyone who might have been released on SR [supervised release] instead of having bail set was not eligible for that avenue of release," wrote Alice Fontier, managing director of Neighborhood Defender Service of Harlem, in an email to Gotham Gazette, in reference to the possibility of release on one’s own recognizance (ROR). "It is rare that people charged with gun cases are released ROR."

"Accordingly, I don't think supervised release has any relevance to gun cases," she added.

With new entrants into supervised release suspended during the pandemic, more defendants in cases of criminal possession of a weapon were released on recognizance than on bail. From March 16 to July 26, 422 people facing weapons possession charges were released on recognizance, compared with 388 for whom bail was set, according to data provided by OCA.

"I think in general there may have been some people who would have really benefited from supervised release services but it was not so much that as a result they were detained," said Fox of the Criminal Justice Agency, indicating that some released on recognizance could have been in the supervised release program had it been taking new entrants.

While supervised release stopped taking new participants between mid-March and mid-July, providers were tapped to provide a similar service to a new clientele: individuals released from city jails because of COVID-19 health concerns.

Between March 16 and July 5, the city released roughly 1,500 jail detainees to mitigate the risk of COVID-19. At least 313 of them -- those who had completed trial, were serving city jail terms, and were let out under an early release program known as "6A" -- were put under the purview of the three supervised-release providers. While the form of the supervision was similar to the pretrial program, the conditions of their 6A releases meant checking in with a case manager daily, a much stricter requirement than the weekly or monthly check-ins of pretrial releases.

Providers, who normally have a representative in the courtroom at arraignment, were put in the position of having to reach and orient new participants outside of the typical framework. 

"Now suddenly people were being released in the middle of the night from Rikers," Fox said. "How do we connect them to supervised release?"

"I have to say this period of pause was a period of intense work and creativity for all the supervised release providers," he added.

"Anytime we release someone, we have to make sure we work to keep everyone as safe as possible, but we had a real imperative about saving lives, that came first," de Blasio told reporters at a press conference in April, in response to questions about how supervision of the early COVID releases was working.

"The fact is, we're going to keep doing whatever it takes to monitor these individuals," he said. "And then, as soon as the crisis is over, the way the releases occurred, if anyone needs to be brought back to jail, they will be.

MOCJ said the three providers are still supervising roughly 70 people who were released under 6A. Of the original 313 early releases, 39 were rearrested by April 30, including one on a gun charge, according to data posted by MOCJ's official Twitter account.

Of the 3,000 participants in supervised release during the height of the pandemic, Fox said engagement remained high. "The programs have all worked really assiduously to keep engaging people," he said. "It's gone surprisingly well."

"We pivoted from being a court-date reminder service to being a wellness initiative where we were texting everyone daily wellness texts that offered links to services," in addition to personalized calls, Fox said. He said several hundred referrals to social services were made during the state of emergency.

"That offering is definitely not as intense as [pre-pandemic] supervised release," Fox noted, "but we did find it was quite effective in terms of at least giving people a sense that somebody cares about them."

One of the main challenges case managers have faced is reestablishing lines of communication remotely, especially with clients who have unstable housing and limited access to a phone or computer.

"This was an immediate challenge of working with homeless individuals without phones," said Rempel of  Center for Court Innovation. "We had to be able to communicate with them remotely."

Rempel, Fox, and Richards all said their organizations purchased phones and devised ways to distribute them safely without risking exposure to the virus, either through drop-offs or contacts in the community.

Many of the service providers Gotham Gazette spoke with believe the coronavirus crisis may have helped secure the supervised release initiative, as officials seek alternatives to crowded jails and as well-established channels of communication become essential.

"As the courts start to reenvision how they will be operating in this new normal, supervised release is going to play a pivotal role in working with community-based organizations to make sure that we don't incarcerate people who don't need to be detained," Richards said.

by Ethan Geringer-Sameth, reporter, Gotham Gazette

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After Intake Pause, City's Supervised Release Program Set for Large Expansion Tue, 04 Aug 2020 04:00:00 +0000
City Budget Crisis, State Bail Reform Could Delay Closure of Rikers Island Jails dcc jponte rikers

(photo: Michael Appleton/Mayoral Photography Office)

The Rikers Island jail complex, a notorious and decrepit institution sitting on 413 acres in the East River, was slated for closure well before New York City became the country’s epicenter of the coronavirus outbreak, during which the complex has emerged as a hotspot for infections that have led to the deaths of several detainees and corrections officers.

But the timeline for shutting down the jail complex and building local jails in four boroughs has been thrust into uncertainty by countervailing forces: state bail reforms were recently rolled back and could reverse a downward trajectory of New Yorkers detained on the island pre-trial, but there are also fewer detainees than ever before as the city has released hundreds in the interest of their health and safety during the pandemic. Meanwhile, due to the economic shutdown, the city’s financial picture has become dire, quickly shifting planned investment in the construction of the new jails necessary to the closure of those on Rikers.

The $8.7 billion plan to close the Rikers jails by 2026 and replace them with four smaller, safer, and more humane borough-based jails, in each borough except Staten Island, was approved by the New York City Council last year after years of pressure from criminal justice reform advocates and elected officials who decried the horrid conditions and crumbling infrastructure of the island’s jails. 

[A Closer Look at the Costs, and Savings, of Closing Rikers and Building Four New Jails]

The plan was put into motion in 2017 by former City Council Speaker Melissa Mark-Viverito, who convened the Independent Commission on New York City Criminal Justice and Incarceration Reform, chaired by former New York Chief Judge Jonathan Lippmann. The commission crafted the foundation of the city’s plan for Mayor Bill de Blasio, who reluctantly embraced it but then ensured a path to its fruition.

The closure of Rikers was contingent on reducing the average daily jail population to below 5,000. In October, when the Council voted on the plan, the daily average was about 7,200 and dropping, with major state-level bail reforms set to take effect in January; there are 14,000 beds across the city jail system. The initial design of the borough-based jails calls for a total of 3,795 beds, and the city intends to house only 3,300 detainees across all four.

As this year began, the bail reforms were implemented, arrests continued their multi-year drop, and the city jail population shrunk significantly, to 5,557 by March 16. But facing a growing campaign of criticism, including some disinformation and fearmongering, state lawmakers decided in April of this year to alter the still-new bail reforms, ensuring more defendants jailed pre-trial. By the time that decision was finalized, the state was already in lockdown due to the coronavirus, concerns about the health of detainees were growing and tax revenues were plummeting. As he ordered the release of some Rikers detainees, de Blasio redesigned his capital budget plan to postpone spending on the new jails.

“In October 2019, the City Council, backed by the Mayor and numerous justice reform advocates, passed a historic measure that will allow the City to replace Rikers Island with four new community-based facilities by 2026. That remains the plan,” said Colby Hamilton, a spokesperson for the Mayor’s Office of Criminal Justice, in an email.

Initially expected to be completed over a decade, the closure plan timeline was shortened to nine years after a spate of reforms passed last year by the Democrat-led state Legislature and Governor Andrew Cuomo that eliminated cash bail for misdemeanors and non-violent felony offenses. Those reforms quickly led to a 40% decrease in the city’s pretrial jail population over the previous year, according to an analysis by the Center for Court Innovation.

But, just three months after those reforms went into effect, Cuomo and the Legislature rolled them back, reinstating cash bail for dozens of offenses and giving judges discretion in setting bail for offenses currently ineligible for pretrial detention. The new rules go into effect July 1 and the Center for Court Innovation estimates that they will lead to a 16% increase in the use of bail and detention over one year, based on the number of people ordered to bail and remand in 2019, adding about 450 more people to the average daily jail population.

After the rollback, activists worried that the Rikers plan was in jeopardy, though the de Blasio administration has not expressed the same level of anxiety. “We also do not believe the recently passed changes to the State bail laws will have a significant impact on the jail population -- we remain on-track for 3,300 by 2026,” Hamilton told Gotham Gazette, referencing a new projection released by the city just before the City Council voted through the jails plan.

The Council also remains committed. “The goal of closing Rikers has not changed,” said a spokesperson for Speaker Corey Johnson, in a statement. “We will work to build on our criminal justice reform efforts as we negotiate a budget during an unprecedented economic downturn.”

The pandemic has proved both a curse and a blessing to those who want to see Rikers shuttered for good. Already reviled for its inhumane conditions, Rikers was at risk of becoming a petri dish for the coronavirus. Data released last week by the Department of Correction showed 362 confirmed cases of coronavirus among the jail population, and another 1,319 among DOC staff. Three detainees and ten corrections officers have died of COVID-19, the disease caused by the novel coronavirus.

But, because of the concern for safety of detainees, since the city went into lockdown, de Blasio has ordered the release of hundreds of people detained for nonviolent offenses or those who are particularly vulnerable because of age or preexisting medical health conditions. Cuomo has also taken measures to reduce jail and prison censuses across the state, including by releasing some people incarcerated for technical parole violations.

There are now 3,906 people in New York City jails, down 1,651 from March 16. Of those still in jail, 3,421, or 87.5%, are pretrial detainees, including 595 there on open cases and parole violations. Another 214 are being held only on technical parole violations with no open cases, such as missing curfew or an appointment with a parole officer, for instance.

For those who have long criticized New York’s punitive carceral system, the drastic reduction in the jail population through administrative measures has been vindicating, though there have been a number of detainees who have been rearrested after being released. And the pandemic has added to their fervor to push for a quicker closure of Rikers.

“The COVID-19 crisis has only created more urgency to shut down the Rikers jails, and we are closer than ever to actually doing so,” said former Chief Judge Lippman, in a statement, noting that the jail population was lowered below 4,000 through “smart decisions” while prioritizing public safety. He said the city could still move forward with the borough-based jail plan despite its fiscal woes and “put a permanent end to the miserable legacy of Rikers and save billions in operating costs over the long term. This is a time of great difficulty and pain across the city, but it is not the time to turn back on our commitment to a better future.”

Tyler Nims, executive director of the Lippman Commission, echoed Lippman in a phone interview. “We have fewer people in jail than in any time in recent memory,” he said. “This crisis has just heightened the need to shut Rikers down and placed even more attention on the harms that incarceration can have and the need to use it as sparingly as possible.”

A new report from the commission that looks at the impact of the recent changes to state bail laws recommends several measures that will ensure that the jail population continues to fall after the pandemic. The commission is pushing for the passage of the Less is More Act, sponsored by Manhattan state Senator Brian Benjamin and Brooklyn Assemblymember Walter Mosley, which would limit reincarceration for technical parole violations. That would enshrine into law the administrative changes that the mayor and governor have enacted in the last two months.

The commission also urges district attorneys and judges to employ the additional discretion they will have after July 1 and request bail only when absolutely necessary, expand the use of supervised release, and provide greater pretrial services like housing to those who need them. “There are also a lot of things that can be done by the courts, by the district attorneys, by the city to make sure that that additional judicial not used in a way that results in a return to the pre-bail reform practices,” Nims said.

The commission also recommends implementing an “ability-to-pay assessment” for cases where cash bail may be imposed and calls on the state Legislature to give charitable bail organizations greater ability to post bail.

“I do have faith that, with the right political pressure, the right smart policies and laws can be put in place to continue the progress that has already been made,” Nims said.

However, the mayor’s latest budget proposal released last month would delay capital spending meant to build the new borough-based jail system. The administration cut the entire $140 million it planned to spend on the effort in the current fiscal year, which ends June 30, and reduced planned capital spending in the next fiscal year from $392 million to $196 million. Even in the best of times, the city has struggled to complete large capital projects on time and within budget. The design process for the jails has barely begun – the city released a Requests for Qualifications for construction vendors for the project in November. While reiterating that the city plans to meet its larger timeline, MOCJ’s Hamilton did not address the delay in capital spending or say whether the planning process for the borough-based jails is still on track.

[Jails, Affordable Housing and Other Capital Projects Delayed as City Grapples with Cash Crunch]

The city’s Uniform Land Use Review Procedure was suspended on March 16, which means that a land use measure initiated by the City Council that would officially prohibit future jails on Rikers Island by designating it a public space was also put on hold.

City Council Member Costa Constantinides, whose district includes Rikers, has called on the City Planning Commission to resume hearings virtually to ensure the process is completed. “Every day we let this application stall is another life put at risk on Rikers. Nothing should stop the decision to close Rikers Island, when we have proven everything from City Council meetings to weddings can be conducted remotely,” he said in a statement last week. “What this virus has done to the detainees, employees, and guards there only underscores why we cannot wait any longer. If there is one application the City hears virtually, in a way that keeps everyone safe, it should be the one that guarantees Rikers is no longer used as a jail.”

Nicole Gelinas, senior fellow at the Manhattan Institute, a think tank, has suggested that, with the financial uncertainty the city currently faces, the administration would be better off abandoning the borough-based jails plan and instead rebuilding Rikers. “With the pandemic, the city must inevitably rethink its capital-budget priorities so that one experimental project does not overwhelm the rest of the scarcer money available for critical infrastructure,” she wrote in a report last week that cited the city’s poor performance on capital projects in the past, among other issues with the plan.

by Samar Khurshid, senior reporter, Gotham Gazette

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City Budget Crisis, State Bail Reform Could Delay Closure of Rikers Island Jails Tue, 19 May 2020 04:00:00 +0000
Max & Murphy Podcast: Senator Michael Gianaris on 'Canceling Rent' & Other Responses to the Coronavirus Crisis 1 senator gianaris wbai 600

State Senator Michael Gianaris (photo: Senator Michael Gianaris/flickr)

April 15, 2020 - Max & Murphy Podcast: Senator Michael Gianaris on 'Canceling Rent' & State Senate Priorities

michael gian senate 150

State Senator Michael Gianaris, a Queens Democrat who is the Deputy Majority Leader of the Senate, joined the show to discuss his push to "cancel rent" amid the onset of the coronavirus recession, other measures he wants to see government take in the face of the crisis, and his reflections on the recently-passed state budget.

Listen to the conversation and let us know what you think -- we're on Twitter @TweetBenMax and @JarrettMurphy. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts, under "Max & Murphy," and listen to Max & Murphy live on Wednesdays at 5 p.m. on WBAI radio, 99.5FM or

by Ben Max, Gotham Gazette

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Max & Murphy Podcast: Senator Michael Gianaris on 'Canceling Rent' & Other Responses to the Coronavirus Crisis Wed, 15 Apr 2020 04:00:00 +0000
Bail Reform Rollbacks are a Dangerous Failing of Moral Courage 3 albany ltgov duffy grad

State lawmakers wrongly bowed to law enforcement pressure on bail reform, the author writes (photo: governor's office)

Predictably, and disappointingly, the New York State Legislature rolled back last year’s historic and hard fought bail reforms at the eleventh hour. It was an act of cruelty after providing our communities the briefest of reprieves following the historic enactment of bail reform just three months ago, on January 1.

Less than two minutes of floor debate allowed racists and prison profiteers to win in their crusade to diminish the reforms, condemning thousands more black, brown, and poor New Yorkers to our broken system of mass incarceration. While the debate was over quickly, the consequences will be felt for generations.

The changes decrease public safety and increase New York’s role in mass incarceration. More misdemeanors are back on the books as eligible for money bail, as are several non-violent felonies like grand larceny in the first degree and criminal possession of a controlled substance in the first degree. In practice, the law blames poor people for the conditions our governments impose on them, allowing factors like lack of stable housing and employment to increase the likelihood of destabilization, arrest, and pretrial detention.

District Attorneys will almost certainly exploit the expansion of bail eligible cases, maximizing their ability to jail the poor pre-trial by upcharging and overcharging incidents as hate crimes or domestic violence. Worse, the rollbacks will result in at minimum hundreds, possibly thousands, more to be incarcerated — possibly preventing the supposedly imminent closure of the Rikers Island jails.

From the moment the clock struck midnight on January 1 and New York’s bail reforms went into effect, critics of the changes and defenders of the status quo went on the attack, determined to undo key measures of justice. They painted a false picture of chaos and anarchy throughout the state, perpetuating the assumption that not forcing legally innocent poor people to remain in jail would make our communities unsafe.

The myth that bail reform would lead to lawless anarchy was absurdly false, but effective at creating a bogeyman. The reality is the now-rolled back bail laws worked. For every cherry-picked, misrepresented case in the media, thousands of black, brown, and poor people were being released pending trial like their wealthy, white counterparts had been for so long. They returned to court, and rates of violent crime did not increase. Lives were saved. Families were spared the intergenerational violence and trauma of incarceration. Housing and jobs were kept. Communities are safer because people with mental health and substance use issues had opportunities for treatment, instead of suffering the cruel, dual punishments of inadequate healthcare while locked in a jail cell.

If the opposition’s aim was merely to create safe and healthy communities, they would be working alongside criminal justice reform advocates to expand public health interventions, affordable housing, education and community-based programs. Opponents of bail reform had a different aim than public safety. Their goal is to reclaim more control over the justice system that remains filled with black, brown and poor New Yorkers. This twisted investment in systemic racism and addiction to punishment comes at the cost of real human lives.

There are legislators who will look at this archaic return to yesteryear and try to tell you the rollbacks aren’t as bad as it could’ve been. That they saved us from “dangerousness” being added to the books, but we know better. One missing tool in a toolbox of oppressive measures isn’t enough to stop a system that is swallowing entire communities whole.

Do not be fooled. There are no heroes here. Any call that these changes are minor is an act of deceit. When taken from the state Capitol building and brought into our criminal courtrooms, the increase in incarceration will be anything but minor.

What is happening here in New York isn’t new. When slavery was abolished, racists adapted and we were met with the Black Codes and convict leasing. When that system as it existed “fell” we eventually received mandatory minimums, three strikes, stop-and-frisk, and broken windows policing. It is no different today. As we fight to dismantle our racist oppressive systems, our opponents are working tirelessly to build new supports to continue to prop them up.

In these recent state budget negotiations, New York’s elected officials had the choice to stand strong and defend bail reform. Instead they chose to retreat and uphold a system of mass punishment -- based on the lies of the very people who directly profit from incarceration and state violence against black, brown, and poor people.

Governor Cuomo and the New York State Legislature failed the test of moral courage.

Tiffany Cabán is a national organizer with the Working Families Party. On Twitter @tiffany_caban.

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Bail Reform Rollbacks are a Dangerous Failing of Moral Courage Thu, 02 Apr 2020 04:00:00 +0000
Rolling Back Bail Reform Amid Coronavirus Outbreak Would Be Additionally Irresponsible sochie bail reform

Sochie Nnaemeka, the author (photo: @sochiesays)

In moments of crisis, we see what our leaders value. Over the past week, coronavirus has spread to Rikers Island. Our state should be focused on keeping detained New Yorkers and correctional workers safe and healthy. Instead, elected officials may roll back bail reforms in response to fear-mongering by opponents of the new law. If our leaders in Albany choose to reduce the number of people eligible to await their trial from home, the jail population could grow during a dangerous pandemic. We must put human safety over punishment and refuse any changes to the bail system.

For too long, New York’s “justice” system disproportionately kept innocent black, brown, and low-income people in cages before even being convicted—all because they were too poor to buy their freedom. While the wealthy were always able to walk free, these communities were caught in an endless cycle of punishment. It took decades of grassroots leadership and activism led by black and brown organizers to finally change a blatantly racist, classist system in meaningful ways.

Republicans, District Attorneys, and law enforcement that have a vested interest in past and present inequities are doing anything they can to claw back their power to incarcerate even more people. And some state officials are already caving to the fear-mongering by proposing regressive bail rollbacks.

There is nothing more cynical or cruel than choosing to put more people in jail during a pandemic.

Behind the negative headlines, we know there are tens of thousands of lives being changed for the better because of the new bail reforms. All across the state, we are hearing stories of New Yorkers who can now continue their lives and care for their children, rather than senselessly languish in jail and have their lives upended. People who need treatment for substance use or mental illness can get access to the support they need, rather than sitting in jails that have little to no health services.

Bail changes should be left alone regardless of any new developments unrelated to their efficacy. But to roll back bail reform in the midst of this pandemic would mean the state considers certain people’s lives expendable, including thousands of people whose only crime is being poor.

At a time when Governor Cuomo is telling New Yorkers to remain home, stay six feet away from others, and avoid crowds, he cannot simultaneously support sending more New Yorkers to crowded, unsafe jails. Our elected officials should instead focus on releasing vulnerable New Yorkers who are at increased risk of illness and reducing the jail population.

What if the New York State Legislature committed itself to building a state that treated all New Yorkers with dignity and equal justice? As head of the New York Working Families Party, I know our members expect progressive leaders to govern with courage and moral clarity — not to operate within the same fear-based framework that maintained a racist justice system for so long. In this moment of crisis, we’re calling on New York state leadership to reject the politics of fear and put the health and welfare of all New Yorkers, including some of the most vulnerable, first. 

Sochie Nnaemeka is New York Working Families Party State Director. On Twitter @sochiesays & @NYWFP.

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Rolling Back Bail Reform Amid Coronavirus Outbreak Would Be Additionally Irresponsible Fri, 20 Mar 2020 04:00:00 +0000
What’s Really Behind Efforts to Reform Bail Reform? A Familiar Theme police grad cere

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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What’s Really Behind Efforts to Reform Bail Reform? A Familiar Theme Tue, 10 Mar 2020 04:00:00 +0000
Bail and Other Misguided Laws Started with Loss of Republican Senate gov li senators

Gov. Cuomo and Long Island Democrats (photo: Governor's Office)

Long Island residents are finding out the hard way, once again, why it was so important to keep a balance of power in New York State via a Republican-controlled Senate and Democrat-controlled Assembly.

When Democrats took over the Senate after the 2008 election, it led to the horrendous MTA tax, which forced schools, nonprofits, and businesses throughout Long Island to pay a huge payroll tax to foot the bill for the city transit system. The bill was put over the top by two Democratic senators from Long Island. The public rebelled and the Senate was put back into the hands of the Republicans.

But in 2018, the tide shifted back to Democratic control in the Senate and throughout state government. “Don’t worry,” we were told, the Long Island bloc of Democrats will be moderate and stop the extremists from implementing dangerous policy. How did that work out?

Laws were passed giving driver's licenses and taxpayer-subsidized college scholarships to undocumented immigrants. Abortion was allowed up to the time of birth. Nine days of early voting, costing millions of dollars, was enacted when just a few days would have sufficed. Unrealistic limits on energy production will cause our electric bills to soar. And, of course, the new bail reforms are undermining public safety and order.

Our Long Island delegation is made up of well-intentioned, hard-working, and dedicated legislators. They will claim that they voted against some of these measures, including the driver’s license law, and can still be counted on to be an effective voting bloc. But it’s not their individual votes on these matters that are most important.

Rather, it’s the singular vote they take at the first legislative session of the year that leads to all these negative outcomes. That is, the vote to put in place a liberal Democrat at the head of the Senate, who then appoints New York City-centric “progressives” to be in charge of just about every committee and push the agenda. Consequently, uber-left legislation that in the past would have been stopped in these committees and never seen a Senate vote are now getting out to the floor.

Numerous local senators are now scrambling to undo the damage done by bail reform, but this misguided law would never have passed had Long Island Republicans still been in charge.

As impressive as these newly-minted senators are, the bottom line is they will vote to continue to have the New York City-centric liberals running the committees and dictating much of the chamber’s agenda. And that is not good for Long Island.

Steve Levy is President of Common Sense Strategies, a political consulting firm. He served as Suffolk County Executive, as State Assembly member, and host of "The Steve Levy Radio Show." On Twitter @SteveLevyNY.

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Bail and Other Misguided Laws Started with Loss of Republican Senate Mon, 09 Mar 2020 04:00:00 +0000
Judicial Discretion Isn’t a Fix for Bail Reform; Bail Reform was the Answer to Judicial Discretion 28 judge criminal

(photo: Ed Reed/Mayoral Photography Office)

As law enforcement and elected officials scream for a do-over regarding bail reform, they urge that judges should be given the discretion to remand people they believe to be dangerous. NYPD Commissioner Dermot Shea in a New York Times op-ed wrote, “We can trust New York State’s judges to use this discretion wisely and only for individuals who pose a real threat to the public or who continuously flout the justice system.” Shea’s boss, New York City Mayor Bill de Blasio, has been calling for giving judges discretion to decide a person’s dangerousness for years.

But the call for judicial discretion as a solution in search of a problem reveals that proponents are either ill-informed, naïve, or simply intent on returning to the racist and biased previous approach to bail.

By now, even those who argue for reforming bail reform agree that the system that had been in place for decades unconstitutionally and immorally punished people based on wealth. Governor Andrew Cuomo, as he signals a willingness to re-evaluate bail reforms, has said that “the system we had was discriminatory and biased.” That “system” was actually made up of individual judges.

Prior to January 1, 2020, it was common practice for judges of New York’s Criminal Courts to set bail that people without bank accounts couldn’t make. Stories are legion of people, almost exclusively people of color, held pretrial on Rikers Island, often on minor charges, because they lacked $500 or $1,000 to pay their way to freedom.

Judges were not required to set that bail. There was no law that mandated that kind of bail. Judges chose to do it. 

In fact, 50 years ago the New York State Legislature reformed the bail laws to allow for other, less restrictive, forms of bail than cold hard cash. Alternative forms of bail like unsecured bonds that do not require any upfront cash payment have been on the books since 1970, but judges have steadfastly refused to utilize these statutorily authorized mechanisms despite repeated trainings, encouragement, and pleading.

Instead, in the exercise of their discretion, judges have chosen to incarcerate people based on wealth by using the harshest option available -- cash or insurance company bail bond – as a way of incarcerating poor people of color who are, after all, supposed to be presumed innocent. It is precisely this exercise of judicial discretion that had to be legislated out of existence.  

While some law enforcement and elected officials warn of a bail reform apocalypse, it is critical to note that the judiciary, too, is clinging to the idea that money bail is sacrosanct. The revelations about the millions of people sent to Rikers Island because they couldn’t afford to pay their way to freedom are beyond dispute. There are countless stories of lost jobs, missed school, violence, and untold impact on physical and emotional well-being. Yet while there hasn’t even been any kind of publicly stated judicial remorse, let alone any mea culpas over the damage they inflicted, there are judges who bemoan bail reform and are trying desperately to return to the ways of the past.

Two judges, one from Nassau County and one from Albany County, chose to exercise their discretion by intentionally flouting the new law and setting cash bail that is now expressly forbidden by statute. 

So, pardon those who cringe and rebel at the notion that bail reform needs a judicial discretion fix. If such a change is made and past is prologue, there will be an awful lot of people of color in pretrial detention after having been deemed to be “dangerous.” As the saying goes, fool me once, shame on thee; fool me twice, shame on me.  

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

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Judicial Discretion Isn’t a Fix for Bail Reform; Bail Reform was the Answer to Judicial Discretion Thu, 13 Feb 2020 05:00:00 +0000
Surveillance and the City: Tracked Until Proven Innocent? one police executive

NYPD tabletop meeting (photo: Edwin J. Torres/ Mayoral Photography Office)

As advocates of mass incarceration slowly realize they are losing their grip on political power, they are flailing to find new strategies to undermine the state’s recent bail reforms. Under the media-driven, police union-inspired, fear campaign against reform, many advocates of the carceral state are pushing a new form of confinement: perpetual GPS monitoring. This techno-solutionism may sound like progress, but GPS monitoring carries the same presumption as cash bail: that some New Yorkers are guilty until proven innocent.

New York is not alone in seeing increasing pressure to replace physical incarceration with new and increasingly invasive forms of electronic monitoring. These surveillance systems can track every place you go, everything you say, and even those around you.

Forget the fact that the businesses cashing in on electronic monitoring have little evidence that it prevents recidivism. Forget the fact that the costly technology is often error prone. You are still left with the mindset of mass incarceration, the presumption that New Yorkers should be stripped of their rights and dignity simply for being charged with a crime.

Thankfully, City Hall has proven to be an unlikely ally in this fight. Don’t misunderstand, Mayor de Blasio hasn’t gone through some criminal justice reformation. The one-time Park Slope progressive didn’t rediscover the principles he seemingly shed on Gracie Mansion’s stoop. No, City Hall is delaying the expansion of electronic monitoring through bureaucratic delays and mismanagement. 

Under New York’s recent reforms, private bail firms can no longer make a profit from renting electronic shackles. Instead, the City itself must take charge of the electronic monitoring program. This delay gives us a crucial window to push back against the wholesale tracking of New Yorkers waiting for their day in court.

The potential scale of electronic monitoring is staggering. In 2018, more than 77,000 people were arrested in New York City for felonies that qualify for electronic monitoring under the new state law. But that number is actually an undercount, since it doesn’t include the thousands arrested on qualifying misdemeanor charges. Yes, New York’s law is so broad that even those accused of certain misdemeanors might soon be forced to wear tracking devices while they await their next day in court.

To understand why that prospect is so daunting, you have to understand the power and perils of modern-day monitoring devices, which have become increasingly invasive and sophisticated. Some devices can turn wearers into walking wiretaps—recording themselves and anyone nearby. Devices can capture sensitive conversations with attorneys or doctors. Some jurisdictions even use this capability to record children.

And then there is the medical impact. It should surprise few that having an electronic device physically attached to your body can cause severe injuries. Complaints range from mild injuries, like bruises, hair loss, and headaches to more serious complications like electrical shocks, and impaired breathing and blood circulation. Many choose electronic monitoring rather than having to endure the horror of jail, but no New Yorker should be forced to choose between their health and freedom.

A new class of electronic monitoring devices spares users the injuries and indignities of traditional GPS anklets. Instead, some electronic monitoring firms install tracking software on users’ smart devices. These applications use the same location tracking that companies use to track phone users and target them with ads.

These products can be less stigmatizing than highly visible tracking devices, but they can have significant privacy and economic impacts. Many phone-based applications record users’ biometric information without disclosing how that data is saved or shared. Applications may access other information saved on users’ devices, and they can exhaust their data plan allowance and battery life. These impacts are quite substantial, especially for low-income individuals, and are a completely inappropriate way to punish New Yorkers who have not yet had their day in court.

Whatever form of electronic monitoring we use, the truth is that we won’t use it equally. Electronic monitoring is disproportionately targeted at low-income communities and communities of color. This should come as little surprise, since these are the exact same communities that bear the brunt of every aspect of the criminal justice system. Poorer New Yorkers are more likely to be arrested, more likely to be charged, and more likely to be subjected to invasive monitoring.

Electronic monitoring is particularly dangerous for undocumented New Yorkers. Despite our claims of being a “sanctuary city,” there is no law that would prevent Immigration and Customs Enforcement (ICE) or any other federal agency from getting a court order to force the city to provide users’ location history. This not only endangers undocumented defendants, but their neighbors, families, and faith communities. This is yet another reason why location tracking must not become the norm for those awaiting trial.

The bail reform backlash has shown that many New Yorkers are deeply uncomfortable with living up to the values we preach. But even some who support bail reform also buy into the false promise of electronic monitoring, propping up the broken logic of mass incarceration and the belief that poor defendants of color are entitled to less due process than their wealthy neighbors. We have to do better, and we have to continue to fight for a city where no New Yorker is tracked until proven innocent.

Albert Fox Cahn is the founder and executive director of The Surveillance Technology Oversight Project (S.T.O.P.) at the Urban Justice Center, a New York-based civil rights and privacy group, and a fellow at the Engelberg Center for Innovation Law & Policy at N.Y.U. School of Law. He writes the monthly "Surveillance and the City" column for Gotham Gazette. On Twitter @FoxCahn & @STOPspyingNY.

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Surveillance and the City: Tracked Until Proven Innocent? Wed, 12 Feb 2020 05:00:00 +0000