New Yorkers working on rolling back mass incarceration entered 2020 with a sense that the wind was strongly at their back. The previous year had been a momentous one: For the first time in decades, Democrats controlled both chambers of the legislature as well as the governor’s mansion. Reform advocates had taken the opportunity to pass a historic raft of criminal justice reforms. Money bail was eliminated for most, though not all, defendants. A host of minor offenses would now result in a notice to appear in court, rather than arrest. And a longstanding imbalance that allowed prosecutors to withhold their evidence against a defendant until the day of trial was finally righted.
Passed last spring, these reforms were set to go into effect January 1. In the meantime, the coalition that had helped push through last year’s reforms — community activists, public defense lawyers, civil libertarians — set their sights on what they wanted to accomplish in the new year to keep the momentum going: repeal the law that insulates police conduct from public scrutiny, reduce the use of solitary confinement, and open a legal avenue for people to challenge their wrongful convictions when exculpatory evidence comes to light.
Most of all, the reform advocates were eager to make sure that, beyond the letter of the law, the underlying spirit of the reforms took hold. “We were really thinking about this as a chance to look beyond criminal justice solutions to so many of these problems,” said Scott Hechinger, a senior staff attorney at the Brooklyn Defender Services, a public defense provider in New York City. “These people who would have been thrown in jail before — what are their actual needs in terms of housing, jobs, education, mental health care? What are we going to do with the money we’re saving by not warehousing them out of sight in jail to maybe actually start to address those needs and heal our communities?”
Criminal justice reformers now find themselves exhausted, dispirited, and dismayed, caught in a 24/7 trench battle to defend the compromise measures they had only just won.
These lofty ambitions, however, hit a snag. It soon became clear that the coalition of reformers had gravely underestimated the determination of pro-carceral forces to claw back the gains of last year and the eagerness of news media to cooperate in a statewide campaign of public fearmongering. They’d also underestimated the willingness of their erstwhile allies among Democratic state legislators to betray the poor, black, and brown New Yorkers overwhelmingly affected by the reforms, if it helps Democrats keep their seats.
Far from building on their progress of last year, criminal justice reformers now find themselves exhausted, dispirited, and dismayed, caught in a 24/7 trench battle to defend the compromise measures they only just won.
If they fail, it’s increasingly possible that New York won’t just revert to the pre-reform status quo. The avenging counterreformation of police unions, police departments, district attorneys, Republicans, and Facebook fascists is currently poised to drive past that line, winning laws that will give prosecutors something they have never had in New York before. Under a proposal unveiled by Democratic senators last week, prosecutors would gain the ability to ask for people to be sent to jail before the benefit of a trial, based on speculation about what sort of crimes they might commit in the future.
To reformers’ dismay, the issue has become a political football. State Republicans see the reforms as a chance to win back control of the state Senate by painting Democrats as soft on crime. It’s a return to a well-worn playbook: For decades, Republicans have hammered their opponents with scare campaigns full of racist dog whistles. The tactic reached its apotheosis in George H.W. Bush’s Willie Horton campaign ad and, by the 1990s, Democrats were triangulating, talking about “superpredators” and passing their own brutal crime bills. With New York Senate Democrats’ evident intention to turn tail and disavow their own legislation, history may be repeating itself.
The stakes are high. New York has long been a national bellwether for criminal justice policy. Around the country, opponents of mass incarceration are anxiously watching the backlash in this state of 20 million people. The interests arrayed against New York’s reforms exist everywhere, and something like the counterattack happening in New York can be expected anywhere criminal justice reform makes substantial progress. Have decades of dropping crime rates and a growing awareness of the racist violence baked into our criminal system primed the public to be open to experiment with alternatives to maximal incarceration? Or do the throwback, boogeyman politics of Willie Horton and superpredators hold the same power that they did 30 years ago? In New York, we’re about to find out.
The Compromise Reforms
Critics of last year’s reforms call the measures rushed and poorly thought out. “That’s just wrong,” retorted Justine Olderman, executive director of the Bronx Defenders, a public defender organization that lobbied for the reforms. “We have been having these conversations in Albany literally for years.” The difference, of course, is that in previous years, Republicans controlled the legislature, which meant that police and prosecutors who had their ear could block the reforms. Last year, with Democrats in control, the issues were given a full hearing with input from all sides, and the anti-reform voices couldn’t kill the legislation.
That’s not to say that the reformers rammed their demands through without concession. On the contrary, the negotiations around bail reform were incredibly delicate, and the resulting compromise left some anti-incarceration advocates feeling that altogether too much had been given away.
For reformers, the crux of the negotiations was about finding a way to end money bail without opening the door to some new regime of pretrial incarceration. In New York, the overwhelming majority of people locked up pretrial were behind bars because they couldn’t afford money bail. Being detained on money bail was incredibly damaging to defendants and their communities — coercing guilty pleas, breaking up families, and costing defendants jobs and housing — but it was also unnecessary in achieving its stated goal: making sure defendants return to court for future hearings. Reformers wanted to end money bail not because wealth-based detention is abhorrent to justice (though it surely is), but because money bail was the primary form of pretrial detention in New York, and their numbers showed that in almost every case, pretrial detention of any kind is damaging and counterproductive.
In opening up New York’s bail laws for reform, however, advocates were running a risk. New York had resisted the national trend of expanding judges’ power to include the ability to lock defendants up based on an assessment of their “dangerousness.” The state’s prosecutors and police saw bail reform was an opportunity to correct this. For community activists, public defenders, and civil libertarians, adopting a “dangerousness” standard was untenable. Given the racist history of cash bail, could judges be trusted not to use a dangerousness test to achieve the same result? Even a more technocratic approach to “dangerousness” decisions — algorithmically driven “risk assessment tools” — has been disavowed by one of its biggest advocates for replicating the race and class imbalances in the criminal justice system.
In the high-pressure negotiations that accompanied the final drafting of the reforms last spring, reformers made a difficult choice: To fend off efforts to introduce a dangerousness standard, they would give up on their goal of completely abolishing money bail. Instead, they agreed to carve out exceptions, for violent felonies and sex crimes, where cash bail could still apply, along with other concessions. To prison abolitionist critics, this was a foolish capitulation.
Even some members of the coalition directly involved in the Albany negotiations admit mixed feelings about the result. “We wanted the legislation passed last year to do more,” said Nick Encalada-Malinowski, the civil rights campaign director for VOCAL-NY, a grassroots group that lobbied for the reforms. “More people out of jail, more due process on the front end.” Still, the reformers told themselves, they had accomplished a great deal. The vast majority of people who would once have been held on money bail would now go free, they had skirted the pitfall of dangerousness, and in coming legislative sessions they could push their agenda even further.
None of them suspected they’d be engaged in the fight of their lives just eight months later, struggling to defend their bitterly won compromise.
The Media Plays Along
Even before the new laws went into effect, there were indications that opponents to the changes wouldn’t be accepting them quietly. In October, news broke that the education arm of the District Attorneys Association of New York, which had strenuously lobbied against the changes, was offering training to prosecutors around the state on how to circumvent the rules and jail people the new laws intended to release.
In November, sheriffs around the state gave coordinated press conferences warning that the new laws would endanger New Yorkers. “We are not fearmongers,” Albany County Sheriff Craig Apple told reporters. “This is going to jeopardize public safety, short and sweet.” In December, John Flanagan, the top Republican in the state Senate, called for the reforms to be repealed even before they went into effect. “I’m not going to go lightly along with the implementation of the law,” Flanagan said, warning that “some type of egregious incident or event” was bound to result.
Late in December, New York tabloids ran stories about Tiffany Harris, a mentally ill woman who slapped several Jewish women. Harris was arrested, arraigned, released, and only a few days later hit another woman, shouting out, “Fuck you, Jews!” The episode resonated in a Jewish community already alarmed about the increasing frequency of anti-Semitic incidents, but the papers also explicitly linked Harris’s case to bail reform. Left unsaid in the furor was the fact that the new bail law gives judges the option of ordering mental health counseling, but Harris’s judge hadn’t done so. Instead, a punitive narrative took hold: Why wasn’t this woman with untreated mental illness in jail?
The real firestorm didn’t hit until this January, as the laws went into effect. Within days, an escalating cycle of fearmongering had established itself. Law enforcement officials would attempt to link frightening incidents to the lassitude of the new reforms. News outlets, whether out of credulity, political sympathy, or lurid sensationalism, would amplify the claim. Republican officials would decry the “egregious” incident or event, and the entire episode would be churned back into a robust social media campaign aggregating a catalog of fear.
The New York Post alone ran four covers in the month of January trumpeting the chaos and danger unleashed by the new reforms. The Daily News also stepped up its coverage of criminal courts, leaving no stone unturned in its search for cases that could be linked to the reforms. In many instances, the purported facts and linkages were strained, or outright false. In one case, a headline said the reforms had set a man free to rape, but the suspect was not charged with any sexual assault crime and the new laws did not affect the case. The New York Times was drawn in too, running a February 5 story quoting prosecutors and police linking the murder of a gang trial witness to discovery reform, another of the justice system changes passed last year. Following objections from reform advocates that the connection was entirely invented, the police commissioner was forced to concede that there was “no direct link between the death of Wilmer Maldonado Rodriguez and criminal justice reform” and the New York Times ran a new story framing the situation as a dispute between the commissioner and the court record.
As these stories accumulated, they were breathlessly disseminated and editorialized over by the social media accounts of Republicans, police unions, and prosecutors. Within days of the new laws going into effect, Washington County Sheriff Jeff Murphy started the Repeal Bail Reform group on Facebook, pumping out stories of the danger posed by the new law to more than 175,000 members. Top Republican operatives, including the state party’s political director, signed on as moderators on the page. (The group came to public attention after reporters noticed that moderators had failed to delete or deal with white supremacist remarks on the page.)
Three weeks after the reforms went into effect, newly installed New York City Police Commissioner Dermot Shea piled on, asserting that upticks in some crimes in New York City were attributable to the new laws. (For many crimes, statistics were down.) Shea lobbied Democratic legislators against the reforms and wrote a New York Times op-ed denouncing them. The New York Police Department has frequently claimed that short-term variations in data are not useful for identifying meaningful trends or analyzing policy — but in this case, Shea chose to build a sweeping policy argument on a few weeks of data. In an especially remarkable move, uniformed New York City police officers began urging citizens at community meetings to contact their legislators and ask them to repeal the reforms.
The sheer volume of screaming headlines made a near-Sisyphean task of reformers’ efforts to introduce nuance or correct brazen untruths. Justice Not Fear, a new project launched by the public defender media advisers Zealo.us and racial justice campaigners Color of Change, quickly spun up a rapid-response debunking operation, but that was clearly playing defense. Selling the reforms’ benefits was challenging. For one thing, the new laws are so young that most cases affected by them are still unresolved. The people who are benefiting from the reforms are still criminal defendants, and most are understandably reluctant to volunteer themselves as poster children while their freedom remains in jeopardy.
“Certainly, all the attention this new law has gotten across the state has had an impact with voters.”
“We know that there are thousands of people all around the state whose lives are better for these reforms,” said Stan Germán, executive director of the New York County Defender Services. “For every one of these scare stories, there are hundreds of stories where someone is going home to their children instead of going to jail, someone who’s keeping their job instead of going to jail, someone who’s keeping their housing instead of going to jail. But even if you can tell their stories, they’re not sexy news stories like the blood-in-the-streets scare stuff the Post is doing. How do you get the press interested in a story about a guy sleeping in his own bed, about the bad things that didn’t happen?”
The relentless media barrage has had a measurable effect on public opinion. Last April, a statewide poll had found that 55 percent of respondents thought that eliminating money bail for misdemeanors and nonviolent felonies would be good for New York, while 38 percent thought it would be bad. A follow-up poll asking the same question on January 21 found only 37 percent saying the law was good for New York, and 49 percent bad. The polls’ author, Steven Greenberg, remarked, “Certainly, all the attention this new law has gotten across the state has had an impact with voters.”
“We always knew that there was going to be some kind of resistance from police, prosecutors, and Republicans,” said Bronx Defenders’ Olderman. “But we were surprised by the way many Democrats have responded.”
Six days into the new year, New York Attorney General Letitia James, a Democrat and former public defender, called for changes to the new law. “Safety should be the priority,” James said. (James’s office did not respond to multiple requests for comment.) The next day, Gov. Andrew Cuomo was already calling the previous year’s signature Democratic achievement a “work in progress” with “other changes that have to be made” and “consequences that have to be adjusted for.” In New York City, Mayor Bill de Blasio echoed his police commissioner in blaming the reforms for an uptick in crime over the first days of the year, calling for a dangerousness standard.
Throughout January and early February, the failure of so many state Democrats to rise to the defense of the new laws was making members of the reform coalition nervous. On February 11, it became clear that some Democrats intended to throw them under the bus. The Democratic leaders of the state Senate announced a plan to completely overturn what they’d passed the previous year. They would eliminate money bail completely, and instead deliver what the reforms’ opponents had wanted all along: a way to lock people up before their trials based on predictions of their future dangerousness.
It was exactly what reformers had carefully skirted in negotiating the compromise last year. And it got worse: Charges for which judges couldn’t set bail under last year’s reforms would now be eligible for being sent to jail. Where the previous law had avoided expanding the use of electronic monitoring ankle bracelets, the new proposal appeared to embrace their broad application. To top it off, the Senate would roll back the previous year’s discovery reforms, which had required prosecutors to promptly turn over their evidence to defendants.
“Our reforms would represent the most progressive justice reforms and justice system in the nation,” Senate Majority Leader Andrea Stewart-Cousins wrote in a statement on the proposal.
“Now a couple of white dudes with buzz cuts and MAGA flags in their backyards and closets are mad at you — and you want to backtrack?”
For the coalition of reform advocates, the Senate plan was a naked betrayal. Introducing a dangerousness standard was even worse than repealing the reforms. “It’s basically a worst-case scenario,” said Peter Goldberg, executive director of the Brooklyn Community Bail Fund, which is part of the coalition that backed the reforms.
“It’s just wildly cynical,” Encalada-Malinowski said. “It’s saying, ‘We are going put people in jail and that’s the progressive thing to do.’ In what context is having a pro-jail political position a progressive position?” Senate Democrats have so far been reluctant to account for themselves. The office of Stewart-Cousins, the majority leader, declined repeated requests for an interview and did not respond to an emailed list of questions. Emails to other Senate Democrats also went unanswered.
Gathering at the Statehouse February 12 to defend last year’s measures, the reformers were furious at the Senate’s surrender to the campaign of fear. “We are here because [the senate] wants to listen to the white-supremacist gibberish that they’re spouting,” Stanley Fritz, of the grassroots Citizen Action, told a roaring crowd. The member groups of the reform coalition had done a lot of work on the ground to help Democrats win their new legislative majority, Fritz said, and they’d done so with the understanding that Democrats would support these reforms. “Now a couple of white dudes with buzz cuts and MAGA flags in their backyards and closets are mad at you,” he said. “And you want to backtrack?”
In the absence of any coherent articulation of the Senate leadership’s motives, or indeed, any data to justify scuttling the newborn reforms, one is left to conclude that the capitulation isn’t about policy so much as politics. Democrats control 40 of the state Senate’s 63 seats, but that majority depends in part on districts on Long Island and the Hudson Valley that voted to make Donald Trump president and, crucially, where reflexive support for law enforcement is strong.
The general election this fall is sure to supercharge turnout, and the party that emerges on top will control the all-important redistricting process and the chance to consolidate a majority for the next 10 years.
Republicans seemed to have made a decision that a campaign of fear is their ticket to winning back the Senate. With so much at stake, it may be that the Democratic leadership has decided that it’s better to abandon the coalition that helped elect them and reverse their position on criminal justice reform if that’s what it takes to hold on to a majority.
Even as a craven electoral strategy, though, it’s hard to understand what upside Senate Democrats think they’re chasing. “We’ve seen that the GOP is going to run their candidates based on false information regardless of what the Senate does at this point,” said Erin George, the civil rights campaign director for Citizen Action. “What do you get by rolling over? I can see the headline now: The GOP is going to say the Senate Democrats didn’t know what they were doing when they passed the reforms, and now they’re admitting it.”
The Senate is just one chamber of the legislature. In the Democratic-controlled state Assembly, Speaker Carl Heastie has been holding the line. “It is too early to determine whether this law is highly successful, successful, working,” Heastie told the Albany Times Union earlier this month. “We just have not had enough time to do that.” But Heastie is facing pressure from nervous Democrats in his own caucus, and it’s increasingly likely that the reforms will be rolled into the budget process, a fixture of the New York legislative machinery in which, rather than giving bills a full public debate and an up-or-down vote, the governor and legislative leaders engage in closed-door horse-trading, bartering one piece of legislation for another to create a last-minute “take it or leave it” omnibus package. The budget process, Albany-watchers know, is where good laws with popular support and seemingly strong legislative backing go to die in the dark.
“Heastie’s saying all the right things about standing by the reforms so far, and he hasn’t given us any reason to doubt him,” said one reform advocate, who asked for anonymity to speak candidly about their fears of legislative support. “At the same time, what he’s saying is also exactly what he’d say if he wanted to strengthen his hand so he can trade this issue away at the last minute for something else he wants more.”
“The Fact of the Backlash”
As the struggle in New York heats up, it’s drawing national attention. No less a figure than Trump recognized the political resonances of the issue when he tweeted about it in November. Last month, Attorney General William Barr waded into the debate personally, traveling to New York City to announce that the woman who had hit several people in Brooklyn, now receiving treatment for her mental illness in a hospital, would be prosecuted with a federal hate crime.
Opponents of mass incarceration around the country are paying close attention too. “Everybody’s watching this,” said Pilar Weiss, executive director of the National Bail Fund Network, an organization that works with groups trying to end pretrial detention. “People have been trying different approaches. They’ve tried litigation, and we’ve seen the limits of that. They’ve tried electing progressive DAs, and we’ve seen the limits of that. In New York, we might be seeing the limitations of a legislative approach, especially when it’s coming up against this coordination between police, police unions, prosecutors, and conservative politics.”
“Even if we’re tactical and we tiptoe, it’s coming anyway. The backlash is coming anyway.”
“We’re definitely hearing from concerned allies all over the country,” said Goldberg, of the Brooklyn Community Bail Fund. “‘What’s going on over there?’ There’s a sense that what happens here could have real significance all over, and that’s part of what makes it feel so important to get it right.”
For reform advocates, one of the most heartbreaking aspects of the last six weeks has been the opportunity missed so far for the new legal regime to spark a reassessment of the underlying logic of detention. “Every one of these stories in the papers, if you look at them closely, they’re not scary stories about bail reform; they’re stories about failed social services, our failures to build a society that works for everybody,” said Encalada-Malinowski, the VOCAL-NY campaign director. “It’s so profound that we now have this opportunity to say, ‘We can no longer ignore this person’s mental health issue by hiding them in jail for three months, we have to actually deal with the reality of their needs.’ We’ve spent so much time in this country arguing about deserving and undeserving people, whether we want a social safety net, how much to spend on it, or whether it’s better to just put these people in jail. And now in this moment of opportunity, that’s what we’re hearing again: ‘No, we don’t want to invest to resolve any of these issues in the community. The only intervention is jail, we want these people in jail.’”
Inevitably, some of the reformers are wondering what, if anything, they could have done differently over the last year and more to have avoided the present situation. Should they have spent more time educating legislators and the public to inoculate them against the fear campaign? Perhaps, but if activists always waited for bulletproof public support before pressing for change, change would come slow indeed. Did their messaging lean too hard on money bail, at the expense of the wider harms of pretrial detention? “We did a great job of making the case against money bail,” said Goldberg. “Looking back, we could have done a better job explaining the harm caused by pretrial detention in general.”
There’s also a recognition that whatever tactical adjustments reformers might have made, the counteroffensive was inevitable. “For the last four decades or more, we’ve had this tough-on-crime political narrative, and there’s been some hope that we were getting past that,” Encalada-Malinowski said. “And this whole episode has definitely shown that we’re not. We’re involved in something that is beyond one issue, that taps into 400 years of American history. So it’s challenging. But maybe it’s not surprising.”
Olderman, of the Bronx Defenders, agreed. “One of the strongest lessons we’ve learned so far is just the fact of the backlash,” she said. “The drive to detain is so powerful, the drive to detain and punish mostly black and brown people from low-income communities is so strict, that it doesn’t matter how careful we are as advocates, how deliberately we approach the issue, present our facts and statistics, show the benefits. Even if we’re tactical and we tiptoe, it’s coming anyway. The backlash is coming anyway.”
Update: February 23, 2020, 2:41 p.m.
This story has been updated to include that the groups Zealo.us and Color of Change are running the Justice Not Fear program.