Genoly Turner made his entrance into an arraignment court in Manhattan, New York, Monday morning through a door in the corner, a glimpse of the metal bars of the holding cells he had just left briefly visible behind him. Turner, 56, heard his name and case number called, then shuffled to the center of the courtroom alongside his lawyer, Amanda Jack, a public defender with the Legal Aid Society.

Arraignments, the moment arrested people first appear in court, are often speedy things; defendants hear the charges against them and either go home until their next court date or go to jail. Those who end up behind bars generally do so because, though still presumed innocent, they cannot afford to pay the money bail the judge has set.

Turner’s arraignment was less speedy than many in part because, with his consent, his lawyer was taking an opportunity. Jack set out to make a record about the human cost associated with New York judges accelerating reliance on pretrial detention even as New York City jails are devolving into an inhumane and increasingly deadly humanitarian crisis — especially for people like her client, Turner, who is immunocompromised.

As advocates have sought to direct public attention to the role that judges and prosecutors are playing by continuing to send people to the jail complex at Rikers Island to await their trials — more than 1,000 people in the last month alone — Turner’s appearance in the Manhattan arraignment court shows how the criminal apparatus that feeds New Yorkers into Rikers continues to operate.

Instead of briskly identifying herself to the court as Turner’s lawyer, Jack began a lengthy recitation: “I appear in honor of the memory of Stephan Khadu, age 24, who died in DOC” — Department of Correction — “custody on September 22 after being found unresponsive at VCBC, our city’s floating jail barge,” she began, referring to the Vernon C. Bain Correctional Center. “I appear in honor of the memory of Isa Abdul Karim, age 42, who died in DOC custody on September 19.” And so it went on.

“I am demanding the release of every person who comes before this court in recognition of their risk of death and serious harm in city jails.”

Jack continued for several minutes, naming all 12 people who have died in New York City custody in 2021, as the city’s jails on and around Rikers Island have spiraled into mortal disorder.

“As an officer of the court,” Jack concluded, “I am demanding the release of every person who comes before this court in recognition of their risk of death and serious harm in city jails, including subjection to internationally recognized forms of torture. Sending a person presumed innocent to any city jail facility is a potential death sentence.”

Jack’s small act of defiance was mirrored in arraignment courts around the city Monday morning, as members of the Five Boro Defenders, a collective of public defense lawyers that has been organizing around the crisis on Rikers, stood up before judges in Brooklyn, the Bronx, Queens, and Manhattan to read the same statement as Jack.

Up-Charging

The judge to whom Jack was appealing, Herbert Moses, was not, by the numbers, a promising audience. According to New York Office of Court Administration data collected by New York Focus and Gothamist, Moses is the third most prolific setter of bail in all of New York City, conditioning pretrial freedom on money in two-thirds of all eligible cases. (Moses did not respond to requests for comment delivered through his court officers or a New York Courts spokesperson.)

After her statement, Moses summoned Jack up to his seat. In a low voice barely audible from the gallery, he asked her if he intended to make this statement every time she stood up for a client that day and warned her that doing so would only slow proceedings. Then the judge returned to Turner’s case.

An unhoused man currently living in a shelter on the Upper West Side, Turner’s appearance in court stemmed from his alleged attempt to steal bed comforters from a HomeGoods department store the day before. When a store employee attempted to stop him, the employee later told police, Turner threatened to stab him. Police soon arrived, recovered the bedding materials, found no stabbing implement or other weapon on Turner, and arrested him, charging him with robbery in the third degree.

Robbery in the third degree is a charge for which judges are not permitted to set bail at all, but when Turner’s case arrived at the Manhattan District Attorney’s Office, Assistant District Attorney Arielle Evans increased the charge to robbery in the first degree. A “B”-class felony, the new charge is punishable by up to 25 years in prison and is eligible for bail.

Late Monday, the district attorney’s office said in an email, prosecutors were given new guidance on certain conditions under which prosecutors should not seek bail; the changes would not have affected Turner in any case, since prosecutors had already elevated his charges to robbery in the first degree, technically a violent felony.

Public defenders say this kind of up-charging is typical of how prosecutors craft charges to make it possible to send defendants to jail on bail, giving district attorneys extra leverage in their cases to win plea deals.

“It was more of the same from this DA’s office,” Jack said after her court appearance. “I have seen no discernible shift in their practice as more and more of the humanitarian crisis at Rikers Island has been called to public attention.”

Setting Bail

When Assistant District Attorney Michael Gaerman made his arguments before Moses on Monday, he asked the judge to set bail for Turner at $5,000 cash or $15,000 through an insurance bond or partially secured bond.

Gaerman noted that Turner had prior convictions on his record, many of them for robberies. Just how the New York District Attorney’s Office determines how much bail to request is a secret. Asked whether it relied on a formula or guesswork and what considerations weigh its decision making, a spokesperson declined repeatedly to answer.

In New York, the length of a person’s criminal record is not a legal justification for setting bail. The only legal reason to set bail in New York has always been to ensure that a defendant will return to court. New York City contracts with the Criminal Justice Association to assess each person charged in criminal court for the likelihood that they will return for future hearings.

Turner’s CJA assessment ranked him at 22 out of 25, close to a perfect score in his likelihood to return to court. He was penalized three points because, as an unhoused person, he does not own a telephone. One option before the court was to place Turner on supervised release, a city program instituted to help ensure that people make it to their court dates without being sent to jail on Rikers. If he were put on supervised release, Turner would be given a phone.

While the CJA instrument does not bind judges’ discretion in setting bail, it is meant to help them avoid locking up people when they’re very likely to return to court. Even so, judges are increasingly disregarding the CJA findings. In the last quarter for which data is available, judges overruled the diagnostic tool’s recommendation of release for defendants charged with violent crimes two-thirds of the time.

It’s true that Turner has a criminal record, Jack told the judge: “He also has a record of returning to court.” The one time Turner failed to make a court date was 41 years ago, when he was 17.

“This is an egregiously overcharged case. Essentially, it’s a petit larceny.”

“This is an egregiously overcharged case,” Jack told the judge. “Essentially, it’s a petit larceny.” To send anyone to Rikers Island on bail in this moment, Jack said, “forces them to confront the threat of death.” State law requires judges to impose the least restrictive conditions that will ensure a defendant’s return to court, Jack reminded Moses, and in this case bail was no such thing. “Release him on his own recognizance,” she urged the judge, “or under supervised release.”

Moses did not agree. “Least restrictive would be to set some bail,” he said, “and I’m going to do that.” Turner would be held on $2,000 cash bail, he said.

Would the judge at least listen to the recommendation of the supervised release program staffer on hand in the court, ready to speak to Turner’s suitability for the program, Jack asked. The judge would not. Would the judge list the factors in his determination that bail was necessary? The judge declined to elaborate.

Jack made one last attempt. Turner is houseless, and state law requires courts to consider a defendant’s ability to pay bail without hardship before setting it. “Just for the record,” Jack said, “that is well beyond his financial means, and he will not be able to make that.”

Moses responded, “OK.”

“The Exception”

Turner, still handcuffed, was led back through the door and into the holding pens behind the courtroom to await his transfer to Rikers. Jack, distraught, followed him back there. If Turner wanted, she told him, he could fire her, request a new lawyer, and try to get a new arraignment that might keep him off of the island. For a cancer patient with other serious medical conditions that render him immunocompromised, an indefinite stay on Rikers, where Covid-19 cases are rising, could be fatal. Turner told the lawyer he didn’t want to fire her. Everything she’d said had been true.

“Bail is set every day and done so in front of an empty courtroom on people who have no possible way to make or raise the money.”

Lucian Chalfen, a spokesperson for the New York Courts, did not answer questions about what oversight, if any, the courts exercise over judges to ensure that the ways they set bail are fair and legal. “Not agreeing with a bail decision by a criminal court judge, or any judge, doesn’t make that decision illegal or immoral,” Chalfen wrote in a statement. “Even within the new bail reform laws, judges have discretion to set bail when, in their estimation, the charges warrant.”

As it happened, Turner wasn’t sent to Rikers that day, but not for any want of effort on the part of the court and prosecutors. An individual who did not wish to be named was sitting in the courtroom that morning and was moved by Turner’s plight. They resolved to pay his bail so he could return to his shelter. His next court date is set for later in the week. This is not the way things usually go, Jack said.

“Unfortunately, this is the exception, not the rule,” Jack said. “Bail is set every day and done so in front of an empty courtroom on people who have no possible way to make or raise the money to buy their way out of custody.”