The Bail Battle in New York | CUNY Forum
Articles,  Blog

The Bail Battle in New York | CUNY Forum


♪ [THEME MUSIC] ♪>>GOOD EVENING. MY NAME IS BOB LIFF AND THIS IS THE CUNY FORUM, A MONTHLY TOWN MEETING THAT BRINGS PROMINENT NEW YORKERS TOGETHER WITH FACULTY AND STUDENTS OF THE EDWARD T. ROGOWSKY INTERNSHIP PROGRAM IN GOVERNMENT AND PUBLIC AFFAIRS. NEW YORK LAST YEAR DRASTICALLY REFORMED RULES CONCERNING BAIL AND TRIAL PROCEDURES IN RESPONSE TO WHAT ACTIVISTS AND LAWMAKERS SAW AS A RACIALLY AND ETHNICALLY STRATIFIED CRIMINAL JUSTICE SYSTEM WHERE EQUAL JUSTICE UNDER THE LAW WAS MORE SLOGAN THAN REALITY. DECLINING CRIME RATES COUPLED WITH A HEIGHTENED ATTENTION TO ISSUES OF RACIAL JUSTICE HAVE PUSHED A PENDULUM THAT ONCE DEMANDED HARSHER AND MANDATORY SENTENCES TO NEW YORK’S RECENT REFORMS THAT HAVE SEVERELY LIMITED THE NUMBER OF CHARGES THAT ARE SUBJECT TO ANY BAIL AT ALL. IT IS IMPORTANT TO REMEMBER THAT BAIL IS SUPPOSED TO SERVE PRIMARILY AS A GUARANTOR THAT A DEFENDANT WILL RETURN FOR COURT PROCEEDINGS AND TRIAL. AND A TRIAL IS ABOUT THE RIGHTS OF THE ACCUSED, NO MATTER HOW MUCH EMPATHY WE MIGHT HAVE FOR THE VICTIM. AND WHEN THE STATE CAN TAKE AWAY YOUR FREEDOM, THOSE PROTECTIONS FOR A DEFENDANT ARE AT THE CORE OF RIGHTS OUTLINED IN THE U.S. CONSTITUTION AND CENTURIES OF LAW THAT HAVE PING PONGED BETWEEN A MORE STRINGENT AND MORE MERCIFUL SYSTEM OF JUSTICE. PROPONENTS OF THE REFORMS ARGUE THAT ABUSES, INCLUDING THE IMPOSITION OF EVEN LOW BAIL CONDITIONS THAT POOR DEFENDANTS CANNOT MEET WHILE THOSE WITH GREATER MEANS CAN, HAVE DEEPENED RACIAL AND ECONOMIC BIASES BAKED INTO THE SYSTEM. JUDGES ARE LIKE THE REST OF US, INCLUDING POLICE OFFICERS, PROSECUTORS AND THE ACTIVISTS TRYING TO REIN THEM IN, AND HAVING BIASES THAT CAN COLOR HOW THAT JUSTICE IS PROCESSED. BUT IT CAN BE ARGUED THAT JUST AS REMOVING JUDICIAL DISCRETION LED TO SENTENCES FAR TOO HEAVY FOR THE CRIMES CHARGED, FORBIDDING THE CONSIDERATION OF WHETHER A DEFENDANT POSES A CONTINUING DANGER TO SOCIETY AT LARGE CAN LEAD TO THE RELEASE OF REPEAT OFFENDERS, OR AT LEAST THOSE ACCUSED OF THE MOST RECENT OF THEIR ALLEGED REPEAT OFFENSES. WHY NOT LET JUDGES JUDGE? NOW THE STATE SENATE IS TAKING ANOTHER LOOK WITH AN EYE TO REFORMING THE REFORMS, RESPONDING IN PART TO COMPLAINTS FROM LAW ENFORCEMENT THAT THEY ARE TOO LAX AND MEDIA STORIES ABOUT REPEAT OFFENDERS EXPLOITING WHAT CRITICS SEE AS A REVOLVING DOOR CRIMINAL JUSTICE SYSTEM. ASSEMBLY LEADERS ARE SAYING SLOW DOWN, LET’S GIVE THE REFORMS TIME TO SEE IF THEY WORK. WE ARE JOINED BY FOUR OBSERVERS AND PARTICIPANTS IN THE CRIMINAL JUSTICE SYSTEM TO ASSESS THE REFORMS, AND WHETHER OR NOT THEY ARE LIKELY TO CHANGE. DR. ROBERT GONZALEZ IS A PROFESSOR OF CRIMINAL JUSTICE AT ST. JOHN’S UNIVERSITY AND A FORMER ASSISTANT COMMISSIONER OF THE NEW YORK POLICE DEPARTMENT. JACQUELINE MCMICKENS IS A FORMER CITY CORRECTIONS COMMISSIONER WHO IS NOW A LAWYER IN BROOKLYN. SCOTT LEVY IS THE CHIEF POLICY COUNSEL FOR THE BRONX DEFENDERS. AND MICHAEL PESCE RECENTLY RETIRED AS A JUDGE IN WHICH HE SERVED AS CHIEF JUDGE IN BROOKLYN AND HEAD OF THE APPELLATE TERM. SCOTT, LET ME START WITH YOU SINCE THE BRONX DEFENDERS WERE PART OF THE ACTIVISTS. WHAT IS THE JUSTIFICATION FOR THIS KIND OF RADICAL SWING OF THE PENDULUM?>>AS A PUBLIC DEFENDER IN THE BRONX, WE HAVE REPRESENTED TENS OF THOUSANDS OF PEOPLE AND WHAT WE HAVE SEEN OVER THE YEARS THAT WE HAVE BEEN SERVING THE PEOPLE OF THE BRONX IS THAT PRETRIAL DETENTION, PEOPLE WHO ARE PRESUMED INNOCENT AND HAVE NOT BEEN CONVICTED OF ANYTHING.>>WHICH IS THE MAJORITY OF PEOPLE IN THE RIKERS.>>THE MAJORITY OF PEOPLE IN THE STATE AND CITY’S JAILS ARE IN PRETRIAL DETENTION, THEY HAVE NOT BEEN CONVICTED OF ANYTHING. EVEN A FEW DAYS OF PRETRIAL DETENTION CAN — A PERSON’S LIFE ON THEIR FAMLY, ON THEIR COMMUNITY. WE SAW OVER TIME THE RAVAGES THAT PRETRIAL DETENTION CAN DO AND WE KNOW AS WELL THAT THE HARM OF PRETRIAL DETENTION FELL DISPROPORTIONATELY ON FAMILIES AND COMMUNITIES OF COLOR. WHAT WE ALSO KNOW IS THAT IN NEW YORK CITY, WHERE THERE HAS DEVELOPED A VERY STRONG CULTURE OF RELEASING PEOPLE ON THEIR OWN RECOGNIZANCE, RELEASING PEOPLE PENDING TRIAL WITHOUT ANY RESTRICTIONS OR CONDITIONS, IS THAT YOU CAN DO THAT EFFECTIVELY, YOU CAN DO THAT SAFELY AND THAT PEOPLE WHEN RELEASED ON THEIR OWN RECOGNIZANCE OVERWHELMINGLY COME BACK TO COURT WITHOUT ANY PROBLEMS AND THAT THE MECHANISM OF BAIL AND PRETRIAL DETENTION NOT ONLY STOOD IN DIRECT CONTRAST TO THE PRESUMPTION OF INNOCENCE BUT IT WAS JUST NOT EFFECTIVE. WE WERE VERY HAPPY TO SEE THE TRANSFORMATIONAL BAIL REFORM THAT CAME OUT OF ALBANY LAST YEAR AND WHAT WE ARE SEEING NOW OVERWHELMINGLY IS THAT IT IS WORKING.>>JACKIE, THERE HAS BEEN COMMUNITY CONCERNS. YOU ARE A LAWYER IN BROOKLYN. ARE PEOPLE COMFORTABLE WITH THIS?>>YES THEY ARE AND IT IS LONG OVERDUE. PEOPLE MAKING DECISIONS ABOUT A COMMUNITY WHERE PEOPLE RETURN WITHOUT HAVING ANY COMMUNITY INPUT. IF THERE IS GOING TO BE ANY RESTRAINT AT ALL, IT SHOULD BE AS A CONSEQUENCE OF THAT INMATE’S BEHAVIOR, THAT DEFENDANT’S BEHAVIOR, NOT BECAUSE HE HAPPENS TO BE NEEDING BAIL. BAIL IS NOT A STANDARD BY WHICH A PERSON SHOULD BE INCARCERATED. IT COSTS $1000 A DAY TO KEEP SOMEONE IN JAIL. MOST OF THESE PEOPLE DO NOT MAKE $1000 A DAY. MANY OF THEM LOSE THEIR JOBS AS A CONSEQUENCE. THERE ARE TIMES WHERE YOU MIGHT NEED TO NOT RELEASE THEM.>>IS THAT THE ISSUE? NEW YORK STATE CANNOT CONSIDER DANGEROUSNESS EVEN THOUGH JUDGES DO.>>YOU HAVE THE PRESUMPTION THAT YOU WOULD APPEAR IN COURT. IF YOU DON’T APPEAR IN COURT 10 TIMES, WHAT DO WE DO? IF HE IS DOING SOMETHING AND IT IS HIS SEVENTH TIME, I THINK YOU SHOULD ASK THE COMMUNITY WHETHER THEY WANT HIM BACK. I AM NOT SAYING THERE SHOULD BE A PROGRAM THAT SAYS SEVEN TIMES AND YOU DON’T BUT I DO THINK THERE HAS TO BE — JUST TO MAKE THE COMMUNITY SAFE. IF THE COMMUNITY FEELS EVERY TIME YOU ARREST THEM AND THEY ARE HOME, THEN THERE IS A PROBLEM. IT IS A COMMUNITY ISSUE ABOUT HOW ONE ACCEPTS AND USES THIS WONDERFUL SYSTEM BECAUSE I THINK IT SHOULD HAVE BEEN DONE YEARS AGO. JAILS AND PRISONS ARE OVERCROWDED MAINLY BECAUSE PEOPLE COULD NOT MAKE BAIL. SOMETHING AS SIMPLE AS $500 AND THE CITY WOULD NOT TAKE CHARGE CARDS. WE NOW DON’T HAVE A BED FOR SOMEBODY. MOST PEOPLE COULD CHARGE $1000 BUT THERE WASN’T A PROCESS THAT ALLOWED THEM TO GET A PERSON OUT ON BAIL. PRISONS WERE OVERCROWDED FOR THE SIMPLE REASON THAT HAS NOW BEEN CORRECTED. MORE PEOPLE IN JAIL, BECAUSE THEY COULD NOT MAKE THAT BAIL. MOST OF THEM GO HOME. WE HAD A SLOGAN. HE WILL COME BACK BUT HE WILL GO HOME THIS TIME.>>MIKE, LET ME ASK YOU. YOU SAT ON THE BENCH AND DEALT WITH DEFENDANTS. I BELIEVE THE LACK OF JUDICIAL DISCRETION IS ONE OF THE KEY ISSUES. EXPLAIN TO ME THE ISSUE OF DANGEROUSNESS. CAN YOU ASSESS THE DANGER THAT A DEFENDANT OR ACCUSED POSES IN DECIDING A BAIL DECISION?>>YOU CAN MAKE AN EDUCATIONAL INFORMED DECISION ON THAT. IT IS NOT FOOLPROOF BUT GIVEN ALL OF THE KNOWLEDGE THAT A JUDGE GATHERS FROM THE RECORD, FROM STATEMENTS BY THE DEFENDANT’S COUNSEL AS WELL AS THE PROSECUTOR, YOU COULD MAKE A GOOD ARGUMENT FOR THEM NOT BEING DANGEROUS OR BEING DANGEROUS BUT THAT IS NOT AN ITEM THAT JUDGES ARE SUPPOSED TO CONSIDER IN NEW YORK STATE. THERE IS AN EFFORT.>>BUT THEY CAN IN OTHER STATES?>>THEY CAN IN OTHER STATES. NEW YORK IS SOMEWHAT BACKWARDS AND BEHIND THE OTHER STATES WHEN IT COMES TO ALLOWING THE JUDGES DISCRETION TO CONSIDER DANGEROUSNESS. THERE IS AN EFFORT IN ALBANY TO DO THAT. THE THEORY OF BAIL IS TO INCREASE THE CHANCE THAT THE DEFENDANT WILL COME BACK TO COURT AND SO THE STATE DOES NOT HAVE TO SPEND RESOURCES SENDING OUT A BENCH WARRANT, FINDING THE INDIVIDUALS, RE-ARRESTING THEM, PUTTING BACK THEM IN JAIL AND BRINGING THEM BACK FOR COURT, WHICH IS VERY EXPENSIVE. THE THEORY IS TO ENSURE THAT THE DEFENDANT COMES BACK TO COURT. THE MANNER IN WHICH ALL OF THAT WAS DONE HAS CREATED THIS DEBATE IS WHAT IS REALLY RESPONSIBLE FOR WHAT HAS OCCURRED. IF THE MANNER IN WHICH THE LAW WAS ENACTED HAD BEEN SOMEWHAT MORE STUDIED, CAREFUL, NOT RUSHED, IT IS VERY INTERESTING. PEOPLE IN GOVERNMENT KNOW THAT YOU CAN PLACE IN ANY LEGISLATION, THINGS THAT HAVE NOTHING TO DO WITH THE BILL. YOU FIND FOR INSTANCE THAT THIS DRASTIC CHANGE, ALBEIT MOSTLY FOR THE GOOD, WAS PLACED IN THE BUDGET. THE WAY THE BUDGET IS DONE IN ALBANY, IT IS THE DAY BEFORE THE SESSION –>>THE BIG UGLY.>>THE BIG UGLY. THE SESSION IS ENDING TOMORROW. EVERYONE IS ON DECK. YOU WORK AROUND THE CLOCK FROM MORNING UNTIL NIGHT, PASSING LEGISLATION AND EVERY TWO SECONDS, YOU GET A STACK OF PAPERS ON YOUR DESK IN ALBANY — I’VE LIVED THROUGH IT — AND YOU SAY WHAT IS IT? IT IS EXPLAINED IN LIKE TWO OR THREE WORDS. YOU HAVE NEVER SEEN THEM BEFORE AND YOU ARE ASKED TO VOTE ON IT. WHAT HAPPENED HERE IS THIS HUGE PACKAGE, GREAT CHANGES, HISTORY MAKING CHANGES, WAS PLACED INSIDE THE BUDGET. IN OTHER WORDS –>>THERE WAS NOT AS MUCH SERIOUS CONSIDERATION.>>AT ALL. IT’S RIDICULOUS. THIS IS WHERE THE FAMOUS EXPRESSION FITS QUITE WELL. THERE ARE TWO THINGS YOU DON’T WANT TO KNOW HOW THEY ARE MADE. ONE, LAWS, TWO, SAUSAGES.>>BUT YOU’RE AN EXCELLENT CHEF. YOU TAKE SAUSAGE VERY SERIOUSLY. ROBERT, UNDERLYING THIS ENTIRE DEBATE IS THE ISSUE OF RACE AND THE ISSUE OF RACISM, BIAS THAT IS BAKED INTO THE SYSTEM. THAT WAS IN MANY WAYS A DRIVING FORCE IN A TIME WHERE CRIME RATES AND INCARCERATION RATES WERE ALREADY GOING DOWN.>>WE KNOW IT’S CERTAIN ISSUES LIKE STOP-AND-FRISK, WE KNOW THAT BLACK AND BROWN PEOPLE WERE STOPPED A LOT MORE THAN WHITE COUNTERPARTS. WE KNOW THAT ARRESTS ARE UP. WE KNOW THAT CRIME IS UP. CRIME WAS UP EVEN BEFORE THE BAIL REFORM PASSED.>>EVEN THE MAYOR, THE POLICE COMMISSIONER AND TO SOME DEGREE THE MAYOR ARE POINTING TO THE BAIL REFORM CHANGE AS THE DIFFERENT FACTOR FOR THE RISE OF CRIME IN JANUARY.>>I THINK THEY ARE CHERRY PICKING PARTICULAR CASES THEY WANT TO EXPLOIT TO SAY THESE PARTICULAR INCIDENCES ARE WHY CRIME IS INCREASING. WE KNOW CRIME HAS BEEN INCREASING SINCE THE LEGISLATION HAS BEEN PASSED. THERE WERE DIFFERENT THINGS WE NEED TO CONSIDER. MORALE HAS BEEN LOW IN LAW ENFORCEMENT. EVER SINCE OFFICER PANTALEO WITH THE ERIC GARNER CASE WAS TERMINATED FROM THE POLICE DEPARTMENT, MORALE WENT DOWN IN LAW ENFORCEMENT. THAT HAD AN IMPACT ON THE INCREASE IN CRIME. WE HAVE ISSUES NOW WITH POLICE OFFICERS BEING PAID LOWER IN NEW YORK CITY THAN IN OTHER JURISDICTIONS.>>ESPECIALLY THE SUBURBS.>>COMPARED TO THE SUBURBS. SO, THAT ALSO IMPACT MORALE. THERE ARE POLICE OFFICERS TAKING A MORE REACTIVE APPROACH TO ENGAGING THE PUBLIC RATHER THAN A PROACTIVE APPROACH WHICH IS WHAT THEY WERE DOING YEARS AGO.>>AS OPPOSED TO THE COMMUNITY POLICING, PROACTIVE APPROACH.>>WE THINK RIGHT NOW, THE CLIMATE OF LAW ENFORCEMENT WHERE AGAIN IN NEW YORK CITY, THEY ARE TAKING A MORE HANDS-OFF APPROACH TO ENGAGING THE PUBLIC AND I THINK THAT WILL HAVE AN IMPACT ON THE INCREASE IN CRIME.>>I THINK THE CLIMATE, THE POLITICAL CLIMATE WITHIN LAW ENFORCEMENT AND IN THE BROADER COMMUNITY VERY MUCH DROVE THIS DEBATE AND I HAVE SPENT A LOT OF YEARS AS A REPORTER AND THE IMPACT OF SENSATIONAL CASES WHICH ARE SENSATIONALIZED, WHETHER IT IS YOUNG MAN KALIEF BROWDER WHO WAS STUCK FOR OVER TWO YEARS IN JAIL AND BECAUSE HE COULD NOT MAKE A VERY LOW BAIL AND EVENTUALLY COMMITTED SUICIDE, OR THE PEOPLE WHO HAVE BEEN ARRESTED 15 TIMES INCLUDING THREE TIMES SINCE JANUARY 1 AND ESSENTIALLY LAUGH AT THIS SYSTEM AS THEY WALK OUT THE DOOR. THAT IS ALSO PART OF THE CLIMATE THE KIND OF DRIVES A LOT OF THIS DEBATE.>>THESE CASES ARE IN NO WAY EMBLEMATIC OF THE SYSTEM BECAUSE WHAT WE KNOW AND WHAT WE SEE ON THE FRONT LINES IS THAT THERE ARE TENS OF THOUSANDS OF PEOPLE ACROSS THE STATE OF NEW YORK GOING HOME TO THEIR FAMILIES, TO THEIR CHILDREN, KEEPING THEIR JOBS, KEEPING THEIR HOME, KEEPING THEIR SHELTER, WAKING UP IN THEIR OWN BED AND HAVING DINNER WITH THEIR KIDS. THOSE STORIES, THERE ARE TENS OF THOUSANDS OF THOSE STORIES BUT THEY ARE NOT ON THE FRONT PAGES OF THE PAPER. THOSE STORIES ARE NOT COMPELLING TO THE PAPER AND THEY ARE NOT DRIVING THE NARRATIVE, BUT IT IS THE REALITY OF BAIL REFORM NOW.>>AND NEW YORK CITY IS BEHIND THE TIMES. VERY BEHIND. I APPLAUD THE LEGISLATION. JUDGES GOT PUT IN THE MIDDLE OF THE NIGHT. THIS HAS BEEN OVER AND OVER AGAIN, TALKED ABOUT AND IT NEVER GOT ITS PLACE. THIS TIME, IT’S THERE. PEOPLE ARE REACTING TO IT BECAUSE THE JUDGES ARE RIGHT. IT CAME AS A SURPRISE. IT WAS NOT A SURPRISE FOR THE LEGISLATORS. IT HAS BEEN TALKED ABOUT FOR MANY YEARS. I HAVE BEEN OUT OF CORRECTIONS FOR MANY YEARS AND IT WAS TALKED ABOUT WHEN I WAS THERE. THERE IS NO NEED TO KEEP SOMEBODY IN JAIL BECAUSE THEY CAN’T MAKE MONEY. THEY DON’T HAVE MONEY FOR BAIL. MOST OF THEM WILL GO HOME, BECAUSE THEY CANNOT PROVE THEY DID WHAT THEY DID. AS WITH THE 20% INCREASE IN CRIME, I AGREE, POLICEMEN ARE LOOKING THE OTHER WAY. WHY HASN’T SOMEBODY ADDRESSED THAT? EVERYBODY KNOWS MORALE IS LOW IN THE POLICE DEPARTMENT, AND WE KNOW WHY. BUT FAIR IS FAIR. IF YOU DON’T FOLLOW THE RULES, YOU LOSE AND YOU LOSE YOUR JOB. THAT IS EXACTLY WHAT SHOULD HAVE HAPPENED.>>BUT WHAT HAPPENED THAT IS A PROBLEM BESIDES THE FACT THAT IN DEFENSE OF JUDGES, THEY DID NOT ALLOW JUDGES MUCH DISCRETION IF ANY AT ALL, WHICH IS RIDICULOUS GIVEN HOW IMPORTANT THE ROLE OF THE JUDGE IS.>>WHY IS IT RIDICULOUS?>>HOW CAN YOU SAY TO A JUDGE THAT SOMEONE WHO HAS HAD 15 PRIOR NON-APPEARANCES IN ONE CASE, IS ARRESTED FOR AN ALLEGED CRIME AND APPEARS BEFORE THE JUDGE AND THE JUDGE MUST NOT SET BAIL? WHERE IS THE LOGIC OF THAT? IT MAKES NO SENSE. WHAT HAS HAPPENED IS THAT WHILE NEW YORK STATE HAS BEEN LAGGING COMPARED TO OTHER STATES, IF I GIVE YOU AN EXAMPLE, YOU HAVE A CASE THAT GOES ON FOR A YEAR AND A HALF. IT IS READY FOR TRIAL. READY TO PICK A JURY. READY TO PUT A WITNESS ON. FOR THE FIRST TIME YOU AS THE DEFENSE ATTORNEY, WE SEE PAPERS THAT RECORD WHAT THAT WITNESS HAD PREVIOUSLY SAID.>>THIS IS THE DISCOVERY REFORM.>>YES. THAT WAS OUTRAGEOUS. IT’S LIKE BY AMBUSH, TRIAL BY AMBUSH. YOU ARE ARE THE COUNCIL AND YOU HAD THE CASE FOR A YEAR AND A HALF, YOU KNEW THE WITNESS WAS OUT THERE AND THEY WOULD NOT GIVE YOU ANY INFORMATION ABOUT WHAT THAT WITNESS SAID, OTHER THAN TESTIFYING FOR THE PEOPLE AND THEN THEY WOULD SAY, THIS IS WHAT THE WITNESS IS GOING TO BASICALLY SAY ON THE STAND. YOU GET THAT FIVE MINUTES BEFORE –>>SO EVERYBODY UNDERSTANDS WHAT MIKE IS TALKING ABOUT, DISCOVERY RULES — WHEN THE PROSECUTOR IS SUPPOSED TO PROVIDE THE EVIDENCE AGAINST THE DEFENDANT, IT HAS BEEN HELD AS A TOOL BY PROSECUTORS NOT TO GIVE IT TO THE DEFENSE ATTORNEYS UNTIL THE EVE OF THE TRIAL EVEN IF THEY HAVE HAD IT FOR A YEAR. UNDER THE NEW REFORMS, AT LEAST THE INITIAL TURNOVER OF DISCOVERY MATERIAL MUST BE MADE WITHIN 15 DAYS AND PROSECUTORS ARE UPSET ABOUT THIS AND SAY THIS IS AN INCREDIBLE BURDEN AND IT REQUIRES THEM TO HIRE MORE PEOPLE.>>IT IS ALSO A BURDEN FOR THE POLICE, BECAUSE POLICE HAS TO TURN OVER THIS EVIDENCE ALSO.>>THIS IS WHAT THE ISSUE IS.>>DISCLOSING THE NAME OF A WITNESS PERHAPS, OR WHAT THE WITNESS WILL SAY MAY PLACE THAT WITNESS AT RISK, AND DANGER, WHATEVER –>>THERE ARE PROVISIONS. THERE ARE PROVISIONS THAT ALLOW JUDGES TO KEEP THAT WITNESS –>>YES, BUT NOT GIVING THE JUDGE’S DISCRETION TO MAKE THOSE DETERMINATIONS AND THIS IS WHAT OCCURRED AND THIS IS WHAT HAPPENS WHEN YOU HAVE THESE RIDICULOUS METHODS OF MAKING LAWS. YOU HAVE THE PENDULUM WHEN NEW YORK STATE WAS REALLY LAGGING. GO FROM ONE END AND SWING ALL THE WAY TO THE OPPOSITE.>>ONE END MEANING, MANDATORY SENTENCING, NO DISCRETION, TAKE AWAY THE DISCRETION.>>YOU GO FROM ONE END TO THE OTHER. AND WHY? THE PROCESS IN WHICH YOU MAKE LAWS — IS LIKE SAUSAGES.>>ON THAT POINT, I DON’T THINK THIS BILL WAS ACTUALLY PASSED IN THE MIDDLE OF THE NIGHT WITHOUT DEBATE. THE BAIL LAW THAT WE HAVE WAS ACTUALLY PASSED ALMOST IDENTICALLY THE YEAR BEFORE BY THE ASSEMBLY.>>WHY PUT IT IN THE BUDGET?>>THE LAWMAKERS MADE THAT DECISION –>>ABSOLUTELY THE GOVERNOR. MADE THAT DESICION.>>YES. MESSAGE OF NECESSITY. WHY?>>I DON’T THINK IT WAS A MESSAGE NECESSITY.>>IT HAD TO BE.>>IN THIS CASE, IT WAS A BILL THAT HAD ALREADY PASSED THE ASSEMBLY AND HAD BEEN WIDELY DEBATED AND DISCUSSED. THE LAW THAT WAS PASSED IS VIRTUALLY IDENTICAL TO WHAT WE HAVE NOW.>>I BEG TO DIFFER. I THOUGHT THERE WAS SOME DISCRETION FOR JUDGES.>>IT WAS VIRTUALLY IDENTICAL.>>I WOULD HAVE TO GO BACK AND LOOK AT IT. IT WAS WRONG THE FIRST TIME AND IT IS WRONG THE SECOND TIME.>>THAT IS A DIFFERENT QUESTION.>>THAT BILL DIDN’T COME AS A SURPRISE TO MANY PEOPLE. IT HAS BEEN DEBATED AND DEBATED AND WAS FINALLY PASSED.>>IT WAS PASSED WHEN THE DEMOCRATS TOOK CONTROL OF THE STATE SENATE. UNTIL THAT YEAR, THE REPUBLICANS HAD BEEN IN CONTROL.>>THAT’S RIGHT. THE BILL HAS BEEN DEBATED IN SOME FORM OR ANOTHER FOR YEARS, IT’S NOT NEW, AND CERTAINLY IT WAS NOT RUSHED. I SAID IN MY OPENING STATEMENT I THINK THAT THERE HAS TO BE SOME KIND OF POINT WHERE YOU SAY NO, YOU CAN’T GO HOME.>>THE BILL THAT WAS PASSED THE YEAR BEFORE WHEN THE REPUBLICANS HAD CONTROL OF THE SENATE WAS EXPECTED TO BE SOMEWHAT TAPERED OR CHANGED OR MAKE IT LESS SWING TO THE OTHER EXTREME. IT COMES OUT THAT THE SENATE AS DEMOCRATS DECIDED NOT TO TOUCH IT. BECAUSE IF THEY DO, IT WON’T PASS. THERE YOU HAVE, AGAIN, TWO THINGS YOU DON’T WANT TO KNOW HOW THEY ARE MADE.>>MY UNDERSTANDING IS, THE DISTRICT ATTORNEYS AND MY COLLEAGUES IN LAW ENFORCEMENT WERE NOT — THE ALLEGATION NOW IS THAT THIS WAS PASSED WITHOUT THEIR INPUT. I AM ONLY SPEAKING TO THE LEADERS OF THE LAW ENFORCEMENT AGENCIES AND TO THE DISTRICT ATTORNEYS, WHO ARE ALL SAYING THE SAME THING. WE DON’T HAVE THE RESOURCES. THIS THING HAPPENED OVERNIGHT. WHAT DO WE DO NOW?>>LET’S TALK BRIEFLY ABOUT WHAT WE ARE GOING TO DO NOW. THE STATE SENATORS AND THE GOVERNOR ARE RESPONDING TO THIS PUBLIC PRESSURE. A LOT OF IT IS COMING FROM UPSTATE BUT NOT ALL OF IT. A LOT OF IT IS COMING FROM WITHIN THE CITY AS WELL. ONE OF THE CURRENT PROPOSALS IS TO DO AWAY WITH BAIL TOTALLY AND JUST HAVE JUDGES JUDGE, I GUESS YOU WOULD HAVE TO MAKE THAT JUDGMENT BASED ON DANGEROUSNESS. I DON’T KNOW WHAT ELSE — YOU COULD MAKE A DECISION TO HOLD PEOPLE, LET THEM OUT WITH CONDITIONS OR HOME CONFINEMENT.>>THAT WOULD BE UNCONSTITUTIONAL FOR JUDGES TO MAKE A DECISION ON DANGEROUSNESS.>>CONSTITUTIONAL PROTECTIONS.>>EVERY OTHER STATE, JUDGES ARE ALLOWED TO MAKE A JUDGMENT IN CONSIDERING BAIL AS TO WHETHER A DEFENDANT POSES A THREAT TO THE COMMUNITY IF THEY ARE LET OUT. WE CANNOT MAKE THAT JUDGMENT.>>IN NEW YORK AND NEW YORK CITY IN PARTICULAR, JUDGES HAVE NOT BEEN ALLOWED TO CONSIDER THIS EVER. NEW YORK CITY HAS ONE OF LOWEST CRIME RATES OF ANY BIG CITY IN THE UNITED STATES.>>CRIME HAS PLUMMETED.>>THE CONNECTION BETWEEN PRETRIAL DETENTION AND BAIL AND PUBLIC SAFETY IS ACTUALLY NOT WHAT PEOPLE GENERALLY THINK IT IS. BUT WE KNOW FROM LOOKING AT DATA ACROSS THE COUNTRY IS THAT WHEN PEOPLE ARE RELEASED PRETRIAL, OVERWHELMINGLY THEY ARE NOT REARRESTED FOR VIOLENT FELONY OFFENSES. SOMETHING LIKE LESS THAN 2% OF PEOPLE WHO ARE RELEASED ARE ARRESTED FOR VIOLENT FELONY OFFENSES. EVEN WHEN YOU LOOK AT RISK ASSESSMENT INSTRUMENTS, ALGORITHMS USED IN STATES LIKE NEW JERSEY, THE ALGORITHMS THEY USE TO LOOK AT DANGEROUSNESS LABELS A SMALL SEGMENT OF PEOPLE AS DANGEROUS. THAT IS A SMALL SEGMENT AND EVEN PEOPLE WHO ARE DEEMED HIGH RISK, ONLY 8.6% OF THOSE PEOPLE ARE ARRESTED FOR VIOLENT FELONIES. OF THE PEOPLE WE THINK OF AS HIGH-RISK, WE STILL HAVE A 92% OF THEM NOT BEING REARRESTED. WE HAVE THIS INSTINCT THAT WE CAN SOMEHOW PREDICT THE FUTURE AND PREDICT HUMAN BEHAVIOR AND WHAT WE ACTUALLY KNOW WHEN WE LOOK AT IT IS THAT WE ARE VERY BAD AT IT.>>IT IS NOT ABOUT PROTECTING HUMAN BEHAVIOR, IT IS MAKING JUDGMENTS. IT IS AN IMPERFECT PROCESS. PEOPLE MAKE MISTAKES WHEN THEY MAKE JUDGMENTS.>>BUT THOSE JUDGEMENTS ARE NOT FUTURE BEHAVIOR.>>THE COMMISSIONER MADE A POINT THAT 87% OF PEOPLE WHO WERE DISCHARGED IN 24 HOURS WITH NO BAIL.>>NINE OUT OF 10.>>I KEEP COMING BACK TO THE QUESTION BECAUSE I WAS VERY STRUCK WITH THE 1996 FEDERAL CRIME BILL WHICH WAS AT A TIME OF HEIGHTENED CRIME AND IT GOT LOUD AND YOU WOUND UP WITH VERY SEVERE REFORMS TO CRIMINAL JUSTICE THAT MANDATED VERY HARSH SENTENCES WHICH LEAD TO GROTESQUE INJUSTICES BECAUSE JUDGES DID NOT HAVE THE DISCRETION TO SAY THAT IS RIDICULOUS. THE QUESTION IS IN TERMS OF COMMUNITY SAFETY, DOES THIS LACK OF DISCRETION EVEN IN THESE LIMITED CASES –>>WE DON’T NEED DISCRETION, WE HAVE AN ALGORITHM NOW, WE HAVE AI. WE DON’T NEED A JUDGE TO MAKE A DETERMINATION.>>I DON’T THINK ALGORITHMS OR JUDGES CAN PREDICT FUTURE DANGEROUSNESS. WE KNOW THAT NEITHER ARE REALLY ABLE TO DO IT. THE INVITATION TO HAVE JUDGES DETERMINE WHO IS DANGEROUS AND WHO IS NOT IS AN INVITATION FOR IMPLICIT BIAS. THESE ALGORITHMS AND THESE DATA SETS ONLY EXACERBATE AND CODIFY EXISTING RACIAL DISPARITIES IN THE SYSTEM. I THINK ONE OF THE THINGS WE ALSO KNOW, WHAT I THINK IS HIDING UNDER THIS DISCUSSION OF DANGEROUSNESS AND THE BAIL REFORM IS THAT WHAT WE OFTEN THINK OF AS CRIMINAL JUSTICE PROBLEMS, THINGS WE WOULD HAVE GENERALLY TRIED TO SOLVE IN THE CRIMINAL JUSTICE SYSTEM ARE PROBLEMS THAT HAVE SOLUTIONS WELL OUTSIDE THE CRIMINAL JUSTICE SYSTEM. OUR JAILS HAVE BECOME THE LARGEST PROVIDERS OF MENTAL HEALTH SERVICES IN THE COUNTRY. THAT SHOULD NOT BE. WE LOOK AT CASES, WE FIND THAT THEY DO SOMETIMES HAVE PROBLEMS COMING TO COURT BUT THE SOLUTION IS NOT PUTTING THEM IN JAIL. THE SOLUTION IS MAKING SURE YOU CALL THEM TO LET THEM KNOW THAT THEIR COURT DATE IS COMING UP. THE SINGLE MOST EFFECTIVE INTERVENTION FOR GETTING PEOPLE TO COURT IS A PHONE CALL. WE DON’T NEED TO REFLEXIVELY DEFAULT TO PUNISHMENT AND INCARCERATION IN ORDER TO SOLVE THESE PROBLEMS. BUT WE KNOW OVER AND OVER AGAIN IS THAT DEFAULTING TO INCARCERATION AND PREVENTATIVE DETENTION ONLY MAKES THE PROBLEM WORSE BECAUSE PEOPLE DON’T DISAPPEAR WHEN THEY GO INTO JAIL, THEY COME BACK OUT. EVEN A THREE-DAY STAY IN JAIL MAKES A PERSON FAR MORE LIKELY TO BE REARRESTED IN THE FUTURE.>>IN THE ’90s — CRIME HAS REDUCED. NEW YORK IS THE SAFEST CITY IN THE COUNTRY, LARGE CITY, BUT WE KNOW THAT IN 1990 THERE WERE 22,000 PEOPLE IN JAIL IN RIKERS. NOW THERE ARE 7,000. WE DON’T HAVE A CRIME SPREE. WE HAVE NOT HAD A CRIME SPREE. THE CITY HAS NOT BEEN UNSAFE. THE CITY HAS BEEN AS SAFE AS IT HAS BEEN IN A VERY LONG TIME. NOT ONLY THAT PHONE CALLS ARE NECESSARY BUT THE PERSON IS SO MENTALLY ILL THAT THEY FORGET, THEY FORGET TO COME TO COURT. TAKE THAT INTO CONSIDERATION. HE HAS A MENTAL PROBLEM. THERE ARE NO SERVICES.>>WE COULD OFFER TICKETS TO SPORTING EVENTS.>>I SUGGEST IF IN FACT YOU FIND AS A JUDGE AND THE MAN IS STANDING THERE LOOKING DAZED AND DISORIENTED AND HE IS NOT DRUNK BECAUSE HE HAS BEEN IN INCARCERATION FOR 48 HOURS. IT TAKES YOU TWO DAYS TO GET BEFORE A JUDGE. 24 HOURS AT LEAST. MAYBE WHEN YOU WERE THERE. YOU’VE BEEN GONE FOR A WHILE. — >>I WAS IN CRIMINAL COURT AND ARRAIGNMENT FOR A WHILE.>>YOU JUDGES MEET AND TALK ABOUT THE SYSTEM, WHAT HAPPENS IF YOU HAVE SOMEBODY THAT WAS TOTALLY DISORIENTED AND HE HAS BEEN IN THE SYSTEM 24 HOURS, IT WOULD BE NICE IF SOMEBODY GO AND SAY TO HIM SIR, ARE YOU ON MEDICATION? HAVE YOU NOT HAD YOUR MEDICATION AND THEN WE HAVE A DIFFERENT PARADIGM FOR THIS MAN. YOU HAVE A PERSON WHO IS PART OF OUR COMMUNITY WHO HAS A PROBLEM, WHY NOT ASSIST HIM?>>THAT IS SUPPOSED TO BE A PART OF THE PREARRAIGNMENT INTERVIEW DONE BY — I DON’T KNOW WHO IT IS CALLED NOW BUT THE CRITIQUE ABOUT — YOU PUT SOMEONE IN JAIL TO GUARANTEE HE WILL REAPPEAR. IF THERE ARE GOING TO BE REPERCUSSIONS TO THE PERSON’S NOT LEGAL PROBLEMS THAT’S TAKEN CARE OF BY THE DEFENSE COUNSEL, THE SOCIAL PROBLEMS AND WHAT THE SYSTEM LACKS IS A SUPPORT MECHANISM THAT IF SOMEONE, IF BAIL IS SET FOR SOMEONE, HE HAS COUNSEL TO TAKE CARE OF HIS LEGAL ISSUES, WHAT ABOUT HIS SOCIAL ISSUES? THERE’S NOTHING FOR THAT. IF YOU HAVE A JOB, CHILDREN, HOUSING, THERE SHOULD BE AN ENTITY, A SAFETY NET THAT CAN HELP NOT SOLVE 100% OF THOSE PROBLEMS BUT SOME OF THOSE PROBLEMS CAN BE RESOLVED IF THERE IS A MECHANISM IN PLACE. WE DON’T HAVE ONE.>>I THINK WE HAVE ONE AND WE ARE STARTING TO MAKE IT MORE ROBUST.>>IN YOUR OFFICE.>>IN MY OFFICE WE HAVE ROBUST SOCIAL WORK AND WE THINK THAT IS BY FAR THE MOST EFFECTIVE THING FOR BRINGING PEOPLE TO COURT BUT ALSO MAKING SURE PEOPLE HAVE SUCCESSFUL OUTCOMES IN THEIR CASES. WHAT THE NEW BAIL REFORM ACT ACTUALLY DOES IS IT ACTUALLY ASKS JUDGES TO EXERCISE DISCRETION IN A WAY THEY HAVE NEVER DONE BEFORE. IT REQUIRES THE CREATION OF PRETRIAL SERVICES. IN NEW YORK CITY WE HAVE VERY ROBUST PRETRIAL SERVICES. IT HAS EXPANDED AND IN THE BRONX WE ARE VERY LUCKY TO HAVE BRONX COMMUNITY SOLUTIONS WHICH IS THE PROVIDER OF PRETRIAL SERVICES IN THE BRONX AND THEY MAKE A WIDE NUMBER OF SERVICES AVAILABLE TO FOLKS ON A VOLUNTARY BASIS. THEY PROVIDE THOSE PHONE CALLS AND CHECK INS FOR PEOPLE WHO NEED MORE ATTENTION, THEY VISIT PEOPLE IN THE COMMUNITY TO MAKE SURE THEY ARE COMING BACK TO COURT AND MAKE SURE THEY HAVE THE SUPPORT THEY NEED. BEFORE WE HAVE THIS BAIL REFORM, WHILE JUDGES HAVE TECHNICALLY HAD DISCRETION, THEY REALLY ONLY USED ONE TOOL. THE ONLY TOOL THAT JUDGES USED WAS BAIL AND INCARCERATION. THAT WAS THE ONLY TOOL THAT FOLKS USED.>>NO. WE USE TOOLS. THAT IS THE ULTIMATE RESULT. BAIL IS JUST ONE ASPECT THAT JUDGES CONSIDER.>>YOU ALSO HAVE THIS SITUATION BECAUSE OBVIOUSLY THE ONE PARTY IN CRIME THAT WE HAVE NOT DISCUSSED IS THE VICTIM, AND LEGAL PROCEEDINGS ARE ABOUT THE DEFENDANT, BECAUSE THE STATE CAN TAKE AWAY THE DEFENDANT’S FREEDOM. THAT IS WHAT IT’S ABOUT, HOW MUCH EMPATHY — LAWMAKERS, SOCIETY AT LARGE, THOSE OUTSIDE THE LEGAL JUSTICE SYSTEM ARE CONCERNED ABOUT THE THREAT TO SAFETY, THE FACT THAT CRIME HAS BEEN INCHING UP. IT IS STILL AT LEVELS THAT HAVE GROWN INCREDIBLY LOWER THAN IT WAS. YOU SEE THE POLITICAL WORLD REACTING. WE HAD A WHOLE SERIES OF ANTI-SEMITIC ATTACKS EARLY THIS YEAR. THERE WAS DISCUSSION OF MAYBE HATE CRIMES BEING ADDED TO THOSE LIST OF OFFENSES THAT WOULD BE BAIL ELIGIBLE. THERE ARE THINGS IN WHICH YOU POLITICALLY RESPOND. ARE YOU GOING TO USE BAIL ELIGIBILITY NOW AS A TOOL TO ANSWER A POLITICAL PROBLEM? I AM NOT DOWNPLAYING THE SERIOUSNESS OF THE ANTI-SEMITIC ATTACKS AT ALL.>>ABSOLUTELY NOT. WE FOUND THE MAN WHO DID ONE OF THEM WAS MENTALLY ILL.>>AND THEN THE FEDERAL GOVERNMENT IN A GROTESQUE OVERPLAY DECIDED THAT BECAUSE THE STATE COULD NOT GIVE THAT PERSON BAIL, THEY WERE GOING TO COME IN AND ARREST THIS PERSON. A GROTESQUE OVERREACH IN MY OPINION.>>I DON’T KNOW ANYTHING ABOUT THIS OR WHETHER HE HAD BEEN INCARCERATED BEFORE. BUT I WANT TO SAY SOMETHING ABOUT THE VICTIM. THE CRIMES THAT PEOPLE COMMIT, AND THE VICTIM HAS A RIGHT TO ASK FOR SOME PROTECTION BUT WHERE DO WE HAVE THE STUDY THAT SAYS THAT BECAUSE HE GOT OUT ON BAIL HE COMMITTED ANOTHER CRIME? WE DON’T HAVE THAT DISCUSSION. PEOPLE ARE HYSTERICAL ABOUT THAT. I ASKED THE VICTIM.>>THERE ARE PEOPLE — THERE ARE MORE CASES THAN WE WOULD CARE TO TALK ABOUT IN TERMS OF PEOPLE VIOLATING ORDERS OF PROTECTION. THERE ARE CLEARLY CASES.>>AND THOSE ORDERS OF PROTECTIONS AREN’T JUST ORDERS OF PROTECTION. THEY DO NOT PROTECT WOMEN. AND WE KNOW THAT. THE ORDERS OF PROTECTION, THERE WERE TOO MANY CASES IN THE COUNTRY WHERE WOMEN HAVE HAD ORDERS OF PROTECTION AND IT IS A PIECE OF PAPER. THE HUSBAND CONTINUE TO BATTER THEM AND THEY CONTINUE TO DO WHATEVER. WE ARE NOT — I DON’T WANT TO TALK ABOUT WHAT HAPPENED RECENTLY BUT YOU CAN HAVE AN ORDER OF PROTECTION AND IT IS NOT GOING TO PROTECT YOU. THE POLICE DO NOT POLICE AND ASSIST YOU. THOSE ORDERS OF PROTECTION ARE PIECES OF PAPER.>>AND IT’S THE CASE THAT A REPEAT OFFENDER CAN IN FACT, SOMEBODY WHO VIOLATES THAT ORDER, THAT IS BAIL ELIGIBLE. VIOLATING THE ORDER — THAT BECOMES BAIL ELIGIBLE.>>YOU CAN SET BAIL.>>THAT’S RIGHT.>>BASED ON THAT ALONE.>>THAT IS MY POINT. THE SYSTEM IS NOT WITHOUT SOME RESTRAINT ON VIOLENT BEHAVIOR. YOU CAN’T JUST SAY — I WOULD HOPE THAT JUDGES ARE RESPECTABLE WONDERFUL PEOPLE BUT IF I AM LOOKING AT A PERSON WHO HAS BEEN ARRESTED SEVEN TIMES AND I AM A JUDGE AND I REALLY THINK YOU DIDN’T COME BACK THE LAST SEVEN TIMES, I DON’T THINK THERE WAS ANYTHING WRONG WITH HIM SAYING YOU HAVE TO STAY HOME THIS TIME. OTHER THAN THE KINDS OF THINGS THAT JUDGES SHOULD BE LOOKING AT AND SAYING YOU HAVE DISRESPECTED THE SYSTEM, THEN WE ALL COULD CONTINUE TO DO WHAT THIS BILL SUGGESTS.>>DO YOU THINK A JUDGE COULD INCARCERATE THEM WITHOUT BAIL?>>HE COULD DO BAIL SIGNIFICANT ENOUGH. WE CANNOT DENY BAIL FOR PEOPLE.>>YOU ALSO HAVE THE CASE, THE OBVIOUS DISPARITIES BETWEEN SOMEBODY FOR A $500 BAIL MEANS A LOT LESS TO ME THAN IT MIGHT MEAN TO SOMEBODY.>>BUT JUDGES ARE AWARE OF THAT. WE CONSIDER THAT, WE CONSIDER THE MEANS THE DEFENDANT HAS AND BAIL IS ONE TOOL. YOU COULD REQUIRE THE DEFENDANT TO COME BACK TO YOUR OWN COURTROOM ONCE A MONTH IF NECESSARY. THERE ARE ALL KINDS OF TOOLS. YOU JUST HAVE TO GIVE THE THE JUDGES DISCRETION. YOU HAVE TO TRUST.>>IS THE LOSS OF DISCRETION A RECIPE FOR INJUSTICE?>>IT COULD BE. WE ARE THROWING OUT A LOT OF DIFFERENT IDEAS. I KNOW LAW ENFORCEMENT OFFICERS IN THE STREET — WERE ACTUALLY DISCOURAGED FROM TREATING ONE AS A MOSTLY DISTURBED PERSON VERSUS ARRESTING THEM, BECAUSE WHEN YOU TREAT THEM AS A MOSTLY DISTURBED PERSON, IT IS A HUGE DRAIN ON THE OFFICER. THEY HAVE TO GO TO THE HOSPITAL AND SIT WITH THEM IN A CONFINED SPACE FOR DAYS. IF YOU PLACE THEM UNDER ARREST, YOU ARE WITH THEM FOR THREE HOURS AND THEN YOU TURN THEM OVER TO THE CRIMINAL JUSTICE SYSTEM AND THEN YOU WIPE YOUR HANDS AND YOU ARE DONE. OFFICER SUPERVISORS OFTEN DISCOURAGE COPS FROM TREATING SOMEBODY AS SEVERELY DISTURBED AS OPPOSED TO JUST MAKING ARREST.>>I HOPE YOU ARE NOT EQUATING DISCRETION THAT COPS USE WITH THE DISCRETION THAT JUDGES HAVE.>>WHAT HAPPENS IS THEY ARREST THEM.>>THEY HAVE HUGE DISCRETION.>>THEY KNOW THEY ARE MENTALLY ILL, THEY JUST DON’T WANT TO BE BOTHERED WITH THEM. THEY GO TO RIKERS WHEN THEY ARE MENTALLY ILL AND THEY SIT AND WHEN THEY GET TO YOU OR BEFORE THE JUDGE, HE WAS ALREADY IN JAIL, WHY WOULD YOU LET HIM OUT? UNLESS HE CAN GET BAIL, HE STAYS IN JAIL. THERE IS NO INCENTIVE, THERE IS NO PLACE TO PUT HIM OTHER THAN RIKERS. IF YOU LET HIM OUT ON BAIL AND HE IS ON MEDICATION, HE CAN PROBABLY CONTINUE HIS MEDICATION. IF YOU HAVE HIM IN RIKERS AND IT TAKES DAYS TO GET HIS MEDICATION WHAT HAVE WE DONE? WE HAVE TREATED HIM UNFAIRLY.>>HALF THE POPULATION IN RIKERS IS MOSTLY –>>I DON’T KNOW IF THERE WAS A STUDY. IN ANY JAIL POPULATION IN MY 20 YEARS, A GOOD THIRD OF THEM WERE MENTALLY ILL AND SHOULD NOT HAVE BEEN IN JAIL.>>25 YEARS OF DEALING STRICTLY WITH CRIMINAL MATTERS, I HAVE HAD PARENTS COME TO THE COURTROOM AT ARRAIGNMENT ASKING THROUGH THE ATTORNEY TO IMPOSE BAIL BECAUSE THEY DID NOT WANT THE SON OR DAUGHTER TO COME BACK HOME BECAUSE IT WOULD CREATE PROBLEMS BECAUSE OF DRUG USE. WE’VE HAD PROSTITUTES WHO WOULD TELL COUNSEL TO ASK THE JUDGE — THEY WOULD LIKE TO BE IN JAIL FOR A COUPLE OF DAYS JUST TO REST. I HAVE HAD MURDER CASES WHICH I HAVE RELEASED THE DEFENDANT OF THEIR OWN RECOGNIZANCE. I HAVE HAD CASES WHERE THERE IS MANDATORY JAIL TIME. I TOOK A PLEA AND HAD THEM COME BACK TO ME ONCE A MONTH LIKE PROBATION TO SEE WHAT HE WAS DOING, WAS HE WORKING? THE DISCRETIONARY ASPECT OF THE JUDGE’S ROLE IS VERY IMPORTANT.>>I THINK A LOT OF THE ISSUES WE WERE JUST DISCUSSING, THE ANSWER TO SO MANY OF THESE QUESTIONS IS NOT COURTS OR PROSECUTORS OR THE POLICE. I THINK THAT IS WHERE WE ARE. WHEN WE SEE SOMEONE WHO WAS GOING THROUGH SUBSTANCE USE ISSUES OR MENTAL HEALTH, WHAT I CAN SAY IS REALLY WHAT UNITES MOST PEOPLE SITTING ON RIKERS ISLAND IS THE EXPERIENCE OF TRAUMA. THE EXPERIENCE OF TRAUMA THAT DRIVES PEOPLE INTO THE CRIMINAL JUSTICE SYSTEM, THE EXPERIENCE OF TRAUMA THEY RECEIVE WHILE THEY ARE THERE.>>HOW DO YOU SOLVE THE TRAUMA?>>YOU SAY THE CRIMINAL LEGAL SYSTEM IS NOT THE PLACE TO DO IT. WE NEED TO INVEST IN HOUSING RESOURCES, MENTAL HEALTH RESOURCES. THE ONLY RESOURCE AVAILABLE TO PEOPLE IS NOT JAILS. WE HAVE TOO LONG INVESTED IN INCARCERATION AND PUNISHMENT INSTEAD OF SUPPORT AND SERVICES THAT PEOPLE NEED. IT HAS BECOME A PLACE OF LAST RESORT. WHAT WE ARE SEEING, WHAT THIS BAIL REFORM DOES IS IT ASKS REALLY TOUGH QUESTIONS. SHOULD WE BE RELYING ON THE CRIMINAL LEGAL SYSTEM TO DO ALL OF THESE THINGS THAT IS NOT PARTICULARLY WELL-EQUIPPED TO DO?>>I AM CURRENTLY A JR. AT CUNY QUEENS COLLEGE. MY QUESTION WOULD BE THE ISSUE OF CASH BAIL. CRIMINAL JUSTICE REFORM HAS BEEN AN ISSUE THAT RECENT DEMOCRATIC PRESIDENT OF CANDIDATES HAVE TOUCHED ON WIDELY. SENATOR BERNIE SANDERS HIMSELF HAS COME OUT IN FAVOR OF ELIMINATING CASH BAIL AT THE FEDERAL LEVEL AND IF ELECTED HE STATED HE WOULD ENCOURAGE STATES TO DO THE SAME AS WELL. MY QUESTION WOULD BE, IF CASH BAIL WAS TO BE ELIMINATED AT THE STATE LEVEL, WOULD THAT SOLVE A MAJORITY OF THE ISSUES WE FACE IN OUR CRIMINAL JUSTICE SYSTEM TODAY?>>THAT IS SORT OF THE PROPOSAL FLOATING AROUND IN THIS STATE AND THE SENATE, TO ELIMINATE CASH BAIL AND THE BURDEN BECOMES ON THE CHARGING PROSECUTOR AND THE JUDGE TO MAKE THAT INTERPRETATION.>>NO. YOU ARE TAKING MORE DISCRETION FROM THE JUDGE.>>I DON’T UNDERSTAND. THE PROPOSAL IS TO DO AWAY WITH CASH BAIL TOTALLY.>>I’M NOT SURE WE KNOW EXACTLY WHAT THE PROPOSAL IS. ON THE LARGER QUESTION, ONE OF THE THINGS THAT HAS BEEN LOST IN THE DISCUSSION ABOUT BAIL AND PRETRIAL DETENTION IS THAT THE HARM I THINK WE ARE REALLY OUGHT TO BE CONCERNED ABOUT AND ADDRESSING AND TRYING TO FIX IS THE EXPANSIVE USE OF PRETRIAL DETENTION AND THE DESTRUCTION IT HAS BROUGHT ON COMMUNITIES OF COLOR ACROSS THIS COUNTRY. WHEN WE ARE EVALUATING PROPOSALS TO CHANGE THE PRETRIAL DETENTION SYSTEM, THE FIRST QUESTION WE SHOULD ASK IS, ARE WE CREATING A SYSTEM THAT MOVES MORE PEOPLE OUT OF A SYSTEM THAT HAS DESTROYED ENTIRE COMMUNITIES? I THINK IT IS VERY HARD TO EVALUATE ANY PROPOSAL IN A VACUUM. I THINK WE HAVE TO LOOK AT IT IN CONTEXT AND SAY WILL THIS RESULT RESULT IN A FURTHER DISMANTLING OF A SYSTEM OF JAILS AND PRISONS ACROSS THIS COUNTRY WHERE WE HAVE THE HIGHEST RATE OF INCARCERATION IN THE WORLD. WHEN WE ARE THINKING ABOUT REFORMING THE SYSTEM, THE FIRST QUESTION WE SHOULD ASK IS WHERE ARE WE NOW AND WHAT IS GOING TO GET US TO THAT PLACE WHERE WE HAVE MORE PEOPLE WITH THEIR FAMILIES, WITH THEIR CHILDREN, KEEPING THOSE JOBS AND DOING THE THINGS THEY NEED TO DO? ARE WE CREATING A SYSTEM THAT RESPECTS AND GUARANTEES THE PRESUMPTION OF INNOCENCE?>>HOW MUCH OF THAT IS LINKED TO THE RACISM THAT IS NOT ONLY BAKED INTO THE SYSTEM BUT BAKED INTO THE SOCIETY AT LARGE, FAR BEYOND — TO A LARGE DEGREE, YOU SAW IT EVEN IN THE DISTINCTION BETWEEN PENALTIES FOR CRACK COCAINE AND POWDERED COCAINE. ONE WOULD BE A MUCH MORE UPPER-MIDDLE-CLASS WHITE PHENOMENON AND ONE WOULD BE MUCH MORE LIKELY TO BE PEOPLE OF COLOR. THE CRACK COCAINE PENALTIES WERE MUCH HIGHER. IS THIS IMPLICIT OR EXPLICIT BIAS?>>YOU MADE A GOOD POINT. WE HAVE TO REMEMBER HOW THE WHOLE THING CAME BY. THERE WERE ISSUES ABOUT HOW BLACK AND BROWN PEOPLE WERE BEING INCARCERATED VS THEIR WHITE COUNTERPARTS, HOW THEY WERE ABLE TO RAISE MONEY FOR BAIL. YOU HAVE TO REMEMBER HOW WE GOT HERE AND I THINK EVERYONE AGREES THAT THERE WERE SOME ISSUES, PERHAPS WE COULD AGREE THAT LEGISLATION NEEDS TO BE TWEAKED OR MAYBE THEY DID NOT CONVERSE WITH THE RIGHT STAKEHOLDERS INVOLVED IN THIS PROCESS. IT APPEARS, MAYBE, MAYBE NOT THAT IT WAS RUSHED THROUGH. MAYBE THAT WAS NOT THE CASE. IN MY PROFESSIONAL OPINION, I THINK THERE ARE SOME COMPONENTS THAT NEED TO BE TWEAKED WITH DISCOVERY AND AS FAR AS THE RACIAL ISSUES ARE CONCERNED, DISCRIMINATORY ISSUES, THAT NEEDS TO BE TWEAKED ALSO BECAUSE IT SEEMS AS IF THE JAILS ARE MORE POPULATED WITH BROWN AND BLACK INDIVIDUALS VERSUS THEIR WHITE COUNTERPARTS. WE AS A SOCIETY NEED TO LOOK AT THIS AND COME UP WITH A COMPREHENSIVE PLAN.>>YOUR NAME AND YOUR CAMPUS PLEASE?>>I’M CURRENTLY A SENIOR AT CUNY LEHMAN. HOW CAN MODERN TECHNOLOGY HELP A JUDGE’S DISCRETION WHEN SENTENCING PEOPLE?>>THAT IS AN INTERESTING QUESTION.>>CREATE SOME ALGORITHMS. THEY’RE WORKING.>>YOU HAVE HOME CONFINEMENT. ARE THERE WAYS YOU CAN MONITOR SOMEONE AT HOME?>>ANKLE BRACELETS.>>BAIL IS JUST ONE TOOL. THERE ARE MANY WAYS IN WHICH A JUDGE CAN — GIVEN THE DISCRETION — CAN FASHION A RELEASE OF SOMEONE WITHOUT FEELING THAT YOU ARE ENDANGERING –>>A COMMUNITY.>>I THINK — HOW CAN TECHNOLOGY HELP? MODERN DAY TECHNOLOGY. THE USE OF MODERN-DAY TECHNOLOGY JUST TO STUDY BEFORE IT IS TWEAKED AGAIN. WHAT DOES A COMMUNITY SUFFER AS A CONSEQUENCE OF THIS SYSTEM, THIS TIME THAT IS GOING ON? I WOULD SUGGEST THAT NOBODY HAS TAKEN A COMPREHENSIVE LOOK FROM THE DAY IT STARTED AND EVERY DAY WHAT IS HAPPENING WITH THAT. THOSE TOOLS THAT ARE AVAILABLE TO US, THE HYSTERIA OF WE DISCOVERED THAT YOU’VE LET EVERYBODY ON BAIL AND THAT’S NOT EVERYBODY IS NOT GETTING OUT ON BAIL BUT THERE ISN’T DISCUSSION ABOUT HOW WE DISCOVER AND STUDY THIS, IT IS NOT PART OF THAT EQUATION. IT IS A GOOD PROJECT FOR SOMEONE WHO IS IN THE SYSTEM, INTERESTED IN THE SYSTEM BECAUSE IT IS VERY INFORMATIVE. IF PEOPLE ARE AWARE OF WHAT IS HAPPENING, PEOPLE ARE NOT MEAN, NATURALLY. AMERICAN BLACKS MAKE UP 13% OF THE AMERICAN POPULATION, 40% OF THE JAIL POPULATION. THERE IS NO WAY TO LOOK AT THIS SYSTEM AND ASSUME IT IS NOT RACIST. IT IS SIMPLY NO WAY FOR 38% OF A 13% POPULATION TO MAKE UP ALL OF THE PRISONS AND JAILS IN THIS COUNTRY. LET’S JUST BE FAIR. WE ARE TALKING ABOUT ECONOMIC SYSTEM WHO KEEP PEOPLE WHO ARE ALREADY DISENFRANCHISED IN THE SYSTEM. HOW DO WE TALK ABOUT THAT? DO WE LUMP ALL BLACKS IN THE SAME, THEY ARE GETTING OUT ON BAIL? HUSBANDS, WIVES, SONS, KIDS, WHO HAVE A JOB GETTING ARRESTED FOR RUNNING A RED LIGHT. THEY HAVE TO SPEND 24 HOURS IN JAIL AND THEY MAY LOSE THEIR JOB. THERE IS NO REASON TO TWEAK THE SYSTEM TO THE POINT THAT IT CHANGES ITS VERY NATURE. IT IS A GOOD THING THAT NEW YORK HAS FOLLOWED SUIT OF OTHER STATES AND DONE WHAT THEY HAVE DONE. THEY HAVE BEEN BEHIND THE TIMES AND I APPLAUD THE GOVERNOR AND THE MAYOR. WE JUST NEED TO UNDERSTAND THAT THIS IS A RACIST SYSTEM AND LET’S STOP TALKING ABOUT IT AS IF IT IS A SYSTEM. LET’S TALK ABOUT IT FOR WHAT IT IS. IT IS A WAY TO DISENFRANCHISE PEOPLE WHO ARE ALREADY DISENFRANCHISED.>>WHAT DO WE SAY TO THOSE VICTIMS WHEN SOMEBODY SHOULD HAVE BEEN INCARCERATED AND THEY GET RELEASED ON NO BAIL AND THEY GO ON AND REOFFENSE?>>WE DON’T KNOW THAT THEY SHOULD HAVE BEEN INCARCERATED. MAYBE THEY SHOULD HAVE BEEN IN A MENTAL INSTITUTION OR MAYBE THEY SHOULD HAVE BEEN IN SCHOOL. WHY IS A 13-YEAR-OLD RUNNING AROUND IN CENTRAL PARK? WHAT 13-YEAR-OLD IN THIS ROOM WOULD BE ALLOWED TO BE OUT AT 11:00 AT NIGHT? THERE WAS NO PLACE FOR THAT KID TO BE? WHO IS TAKING CARE OF THESE KIDS?>>THE CASE IN MORNINGSIDE PARK.>>YES. IT BREAKS MY HEART. ONE OF THOSE KIDS HAD BEEN IN JAIL. THE PROBLEM IS THAT WE HAVE TO HAVE SERVICES IN PLACE TO TALK ABOUT THE THINGS THAT ARE CAUSING KIDS TO DO THESE THINGS. WE’RE TALKING ABOUT A VERY YOUNG POPULATION. WHY ARE THEY THERE? WHY DON’T WE ASK THAT QUESTION? IF THEY HAVE ALREADY BEEN ARRESTED ONCE, WHY ARE YOU BACK? WHAT HAPPENED IN BETWEEN?>>ONE OF THE THINGS I HEARD IN THE QUESTION WE GOT WAS HOW CAN TECHNOLOGY HELP JUDICIAL DISCRETION AND WHAT WE KNOW IS THAT BAIL REFORM AROUND THE COUNTRY IS TURNING TO RELY MORE AND MORE ON ALGORITHMS AND COMPUTER MODELING AND I THINK A PERFECT TIE INTO WHAT YOU WERE TALKING ABOUT, WHEN YOU CREATE ALGORITHMS AND TRY TO USE TECHNOLOGY AND BIG DATA TO HELP INFORM AND INFLUENCE JUDICIAL DISCRETION, IN ORDER TO BUILD THOSE TOOLS, YOU HAVE TO DRAW FROM DATA FROM THE EXISTING WORLD AND THAT DATA WE HAVE IS INFECTED BY SYSTEMIC AND STRUCTURAL RACISM. WE KNOW THE BLACK PEOPLE ARE MORE LIKELY TO BE ARRESTED AND PROSECUTED AND CHARGED WITH HIGHER CRIMES AND CONVICTED. THAT DECISION POINT ALONG THE WAY IN THE CRIMINAL LEGAL SYSTEM, WE KNOW THAT BLACK AND BROWN FOLKS ARE GETTING DISPROPORTIONATELY AND OVERWHELMINGLY HARMED. IF YOU TAKE THAT DATA FROM THE EXISTING SYSTEM AND THEN CREATE A TOOL, A DATA TOOL TO HELP PREDICT THINGS, YOU ARE GOING TO RE-CREATE AND EXACERBATE THOSE PROBLEMS. TO THE QUESTION OF HOW TECHNOLOGY SHOULD BE USED TO HELP INFLUENCE JUDICIAL DISCRETION, WE NEED TO BE VERY SKEPTICAL OF LAUNDERING DECADES OF HISTORY, NOT JUST DECADES, HUNDREDS OF YEARS OF SYSTEMIC AND STRUCTURAL RACISM THROUGH FACIALLY NEUTRAL ALGORITHMS.>>YES SIR.>>YOU STATED EARLIER THAT A PIECE OF PAPER WOULD NOT BE SUFFICIENT PROTECTION FOR WOMEN. I WAS JUST WONDERING WHAT OTHER SOLUTIONS THERE WOULD BE TO SUCH AN ISSUE.>>I HAVE TO SAY THAT THE POLICE DEPARTMENTS NOW VERY SERIOUS ABOUT ORDERS OF PROTECTION. IN THE PAST –>>THEY WOULD HAVE HOME VISITS AND SPECIAL UNITS.>>IN THE PAST THERE WASN’T SO. IT WAS A SLOW CULTURAL CHANGE WITHIN THE POLICE DEPARTMENT TO TAKE ORDERS OF PROTECTION SERIOUSLY, TO A POINT WHERE THE PENDULUM ON THAT ISSUE HAS SWUNG THE OPPOSITE.>>IN A GOOD DIRECTION.>>TOO FAR PERHAPS. SOME OF THE COMPLAINTS ARE, IT WASN’T ME. THERE IS A REPORT, A PHONE CALL, YOU’RE COMING IN. IT WASN’T ME. IT DOESN’T MATTER.>>WE HAVE ABOUT TWO MINUTES LEFT. WHEN YOU LOOK AT THE POLITICAL PRESSURES THAT ALWAYS SURROUND CRIMINAL JUSTICE ISSUES. IT HAS ALL OF THE RACIST HISTORY BAKED INTO IT AND LEGITIMATE CONCERNS ABOUT CRIME. VICTIMS OF CRIME DON’T EXPERIENCE THAT IN THE AGGREGATE. THEY EXPERIENCE IT ONE BY ONE. WE ARE TALKING ABOUT — JUDGES HAVE TO DEAL WITH THE CASE IN FRONT OF THEM AS OPPOSED TO SOME BROADER SOCIETAL ISSUE. EACH CASE IS DISCRETE. WHERE IS THIS DEBATE GOING TO GO? HOW DO YOU SEE THESE ATTEMPTS TO REFORM THE REFORM GOING?>>I HOPE IT FORCES US TO TAKE A STEP BACK AND THINK ABOUT WHAT IT IS WE HAVE BEEN DOING UP UNTIL THIS POINT. WHAT WE KNOW NOW IS THAT WE ARE GETTING IT VERY WRONG. WE HAVE BEEN HARMING NUMBERS OF PEOPLE, OVERWHELMINGLY BLACK AND BROWN FOLKS AND THE SOLUTION TO THESE PROBLEMS DOES NOT LIE IN THE CRIMINAL LEGAL SYSTEM. IT LIES ELSEWHERE AND HOPEFULLY WE CAN START REDIRECTING OUR RESOURCES TO THOSE SYSTEMS OF SUPPORT AND THE SYSTEMS OF SERVICES THAT WILL KEEP PEOPLE OUT IN THE FIRST PLACE AND RESPECT THE PRESUMPTION OF INNOCENCE.>>IT COSTS ALMOST $1000 A DAY TO KEEP SOMEONE IN RIKERS. MOST OF THOSE KIDS DON’T MAKE $1000 A WEEK. WHAT ARE WE DOING? I AM SO HAPPY THIS HAS HAPPENED. I WANT TO GET BACK — THOSE OF US WHO ADVOCATE — THERE IS NO PLACE TO GET THE DATA TO SAY THERE WERE NOT THAT MANY CRIMES. WE DON’T HAVE THE DATA AND THERE IS NO PLACE TO GET IT. WHERE DO YOU GET THE DATA TO SAY IT IS A VERY GOOD THING? I’M NOT SAYING USE DATA TO DECIDE WHO IS A CRIMINAL OR NOT BUT I THINK DATA IS GOOD FOR THE COMMUNITY TO KNOW. I THINK REPORTING IS GOOD. I THINK GOOD ACCURATE STATISTICS ARE VERY GOOD. THE SYSTEM HAS NOT DONE THAT IN A WAY THAT ALLOWS ME TO BE AN ADVOCATE.>>I’VE GOT SEVEN SECONDS LEFT. I WANT TO THANK EVERYBODY FOR A VERY SPIRITED DISCUSSION. WE WILL SEE YOU NEXT TIME ON CUNY FORUM. THANK YOU. ♪ [THEME MUSIC] ♪

Leave a Reply

Your email address will not be published. Required fields are marked *