Gotham Gazette https://www.gothamgazette.com/component/tags/tag/2679 Fri, 13 Dec 2019 21:31:40 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) An Unsigned Piece of New York’s Decarceration Puzzle https://www.gothamgazette.com/130-opinion/8796-an-unsigned-piece-of-new-york-s-decarceration-puzzle https://www.gothamgazette.com/130-opinion/8796-an-unsigned-piece-of-new-york-s-decarceration-puzzle dannemora cuomo

(photo: the governor's office)


Where is Assembly Bill 6980? It updates New York’s Charitable Bail Fund Act to allow approved organizations to bond more people out of jail. The bill passed the Assembly on June 17 and the Senate on June 19, but it hasn’t been sent to Governor Andrew Cuomo, or requested by the governor for his signature, and it’s not clear why.

Bail reform activists finally had their day this year when the New York Legislature passed a comprehensive law that more than overhauled -- it essentially overturned -- the state’s money bail system. It didn’t eliminate the way people pay cash for freedom when they’re legally innocent, but it came close. Of the almost 205,000 criminal cases arraigned in New York City in 2018, only 10 percent of defendants would have needed money for bail if the new law had been in effect.

The new law wasn’t enough for some, though. Carl Heastie, the speaker of the Assembly, admitted that the bail reform law “didn’t go as far as we had liked.”

And that’s exactly why Assembly Bill 6980’s stall-out is both puzzling and problematic. A full and fair reform of the state’s money bail system can’t be realized without it being codified, which members of the Legislature recognized by passing it in June.

Even with the new bail reform law in effect, approximately 20,000 people in New York City alone stand to have their lives uprooted if they’re picked up by police, arrested and subjected to monetary release requirements. Thousands more outside the city face the same risk.

If a judge decides to set a monetary bail amount over $2,000 for a defendant charged with a felony, that person lands in the same situation as before: if he can’t afford to bond out, his freedom will be snatched from him when he’s still presumed innocent and while he can best help his attorneys with a defense. Currently, no bail bond fund can touch him; the law caps the allowable amount at $2,000 and limits assistance to those charged only with misdemeanors.

Assembly Bill 6890 will help fix that. It raises the amount that a charitable bail fund can post to $10,000 and imposes no restrictions on the nature of the charges of the beneficiary of the bail fund, the person who gets bonded out.

Charitable bail funds aren’t new. The first in New York, Bronx Freedom Fund, started in 2008. But it was far from welcomed; a judge sought to shut it down, saying it was illegal. But because it addressed a real need in a state that couldn’t solve the problem of a pretrial detention system that disproportionately pens poor people of color, New York State licensed charitable bail funds in 2012 through the Charitable Bail Fund Act, the law that currently constrains their ability to more fully do what they’re designed to do.

New York City started its own bail fund in 2017 -- the Liberty Fund -- precisely because the city doesn’t control state law, and uprooting the monetized scheme that we call pretrial release wasn’t something the city could accomplish on its own. Charitable bail funds are safety valves when the law doesn’t provide sufficient justice.

It would seem like New York bail funds will have limited utility after the bail reform package goes into effect on January 1, 2020. After all, if money isn’t an issue for 90% of the arrested population, then what can these organizations do?

The short answer is: a lot. In New York City alone, only 43 percent of the almost 5,000 pretrial detainees on April 1, 2019 would have been released under the new legislation. That means that 57% of detainees may remain in custody, even under this revolutionary reform. A study from the Center for Court Innovation found that almost half of all defendants were incapable of paying their bonds immediately after arraignment.

And the likelihood that they will plead guilty, even to crimes they didn’t commit, is about four times higher than if they were kept from confinement while they’re prosecuted. Pretrial release increases the chance that a defendant will be found guilty by about 14.8%. The fact that people enter guilty pleas simply to get out of custody accounts for much of that increase.

While a good number of these people will benefit from and be freed by the new reform law, failing to send this revision of the Charitable Bail Fund Act on to the governor for the final step suggests that lawmakers might have a tad too much confidence in their accomplishments.

Several states have proven that things don’t go exactly as planned when they try to jettison money bail. In California, the bail reform statute never reached fruition even though it was signed by the governor; opposition to SB 10 prevented its implementation.

Even when legislative efforts succeed and laws go into effect, the results can fail. In Illinois, Cook County Chief Judge Timothy C. Evans implemented new rules designed to stop judges from setting unaffordable bond amounts. Initially, it looked like the new rules were working, until judges started setting bonds in untenable numbers to keep people they deemed dangerous incarcerated during the pendency of their cases. The dollar of money baiI set in 30% of cases in Cook County was unaffordable. In Maryland, the system overhaul backfired and ended up causing more people to be remanded to custody than before.

New York legislators had the advantage of knowing about these miscarriages as they drafted their bail reform bill, so they sidestepped many potential pitfalls. They had on their side the fact that New York is the only state to prohibit judges from considering a defendant’s alleged dangerousness in deciding pretrial release conditions. And, luckily, judges in New York City had unofficially decided to lean more towards releasing the people appearing before them prior to the bill’s passage.

But they can’t ignore the opposition to the new bail law that exists and the unfortunate reality that judges will do what they please. If reform does go haywire in New York, poor defendants need a back-up plan. A necessary part of that plan is charitable bail funds being able to fulfill their mission.

The New York Assembly should send 6980 over to Governor Cuomo post-haste. 

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Chandra Bozelko writes The Outlaw column for GateHouse Media and was a 2018 Pretrial Justice Innovator with the Pretrial Justice Institute.

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An Unsigned Piece of New York’s Decarceration Puzzle Tue, 17 Sep 2019 04:00:00 +0000
Several Roads to Decarceration, All of Which Should Be Taken https://www.gothamgazette.com/130-opinion/8123-several-roads-to-decarceration-all-of-which-should-be-taken https://www.gothamgazette.com/130-opinion/8123-several-roads-to-decarceration-all-of-which-should-be-taken govandcuo dannemora

(photo via the Governor's Office)


As the year comes to a close, it is undeniably true that criminal justice reform is in the air. The federal First Step Act, even with critics on the left and right, heralds a less punitive approach than the “get tough on crime” policies of the past several decades. Recent elections yielded a number of prosecutors swept into office on platforms focused on confronting racial disparities and rethinking approaches to low-level offenses. Earlier this month, hundreds crammed into a hotel in West Hollywood for a Criminal Justice Summit that brought together activists, journalists, celebrities, and philanthropists to talk about dismantling the punishment paradigm that has inflicted incalculable damage on communities of color.  

All of these efforts are righteous and long overdue but we need to think more expansively to redress the past 50 years of hyper-aggressive policing, processing, and punishing, and to make a dent in the physical embodiment of the plague of mass incarceration – the 2.2 million people, disproportionately black and brown, currently behind bars.

To be crystal clear, this is not about innocence or so-called low-level, non-violent drug offenders.  To tackle mass incarceration means facing head-on an emotionally charged question about punishment – how long must someone serve in prison for an admittedly violent act?  

Last year, the august American Law Institute, a non-governmental organization of judges, lawyers and academics, approved the first-ever revisions to the historic Model Penal Code. One recommendation specifically addresses the epidemic of people behind bars. The Code now calls for state legislatures to enact a “second look” provision; to create a procedure to reexamine a person’s sentence after 15 years regardless of the crime of conviction or the length of the original sentence. Such a law would be a legislative recognition that a sentence once imposed is not thereby automatically rendered, just, fair and appropriate for eternity.

There are several paths for newly-elected prosecutors to take to foster decarceration. One requires rethinking their approach to applications for parole, clemency, or resentencing. The common practice in most prosecutors’ offices is to oppose those applications when the crime of conviction was violent in nature. In those cases, the prosecutor’s focus is on the crime itself to the exclusion of serious consideration of who the person is today, decades after the crime.  Instead, prosecutors should carefully examine who the person is at present -- what programs has he completed; has he shown insight into who he was and what he did; has he acknowledged his role in his crime, accepted responsibility, and conveyed genuine remorse for the harm he caused? Ultimately, is the evidence of rehabilitation such that more time in prison serves no purpose beyond inflicting eternal punishment?

Many prosecutors’ offices now have Conviction Integrity Units that aim to ensure that innocent people have not been convicted. The best of these units have a significant measure of independence so that they can be as objective as possible and avoid the pitfalls of confirmation bias and tunnel vision. In similar fashion, prosecutors should establish independent Sentencing Review Units. Much like the legislation proposed by the Model Penal Code, these units would review all sentences after 15 years to determine whether a reduction is now appropriate.  

Parole boards across the country are regularly roundly criticized. It is common practice for cronyism to mark membership on the board in lieu of a diligent selection process looking for diverse and qualified people with directly relevant backgrounds and experience. It is also common knowledge that parole boards are reluctant or unwilling to release anyone serving time for a violent crime.    

The laws, rules and regulations governing parole must be amended to dictate a forward-looking approach centered on what the person has accomplished while incarcerated, as opposed to the prevalent current practice that emphasizes the seriousness of the crime, a fact that can never change. This shift would also acknowledge the countless parole-eligible people who have aged out of crime and present no threat to public safety, as well as the elderly behind bars who are in the midst, or on the cusp, of health related problems.

In Pennsylvania, more than 100 people have been released since the Supreme Court ordered states to take a second look at people who had received mandatory sentences of life without parole as juveniles. Not one of those people has been convicted of a new offense.

All 50 state constitutions allow for some kind of executive clemency. The authority to grant clemency in the form of a sentence commutation is typically described as absolute and virtually incontrovertible. Power of the sort galvanized at the Summit in West Hollywood should be marshaled to compel governors to exercise their virtually unfettered, but seldom used, power to grant clemency.

The timing is right -- besides the current clarion call for criminal justice reform, clemency is traditionally an end-of-year announcement cast as an act of benevolence consistent with the merciful spirit of the holidays. Just last week, California Governor Jerry Brown granted 70 sentence commutations, including for people convicted of murder.

The crisis of mass incarceration has fueled a burgeoning movement for criminal justice reform.  Multi-pronged efforts to decarcerate must be at the forefront of that movement.

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

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Several Roads to Decarceration, All of Which Should Be Taken Wed, 05 Dec 2018 05:00:00 +0000