You can listen to this podcast here, on Apple Podcasts, or on Spotify. The following transcript is lightly edited for clarity, so there may be some slight discrepancies between the podcast and the transcript.
So I wanted to get you back on to talk a little bit about the criminal legal reform movement over the last 10-15 years in New York State and specifically the bail and discovery reform laws of 2019. And so before we get there, I would love to get some context on what the status quo was before. And you’re a great person for me to ask because you were a public defender in the Bronx.
From 2015 to 2019 in the Bronx, what was the status quo? What are things that prosecutors could do to your clients with respect to bail and discovery and how did that play out?
I think it’s good to start these conversations with an understanding of what bail is, because I think sometimes people hear about it, but they don’t quite understand what its function is. I think it’s really important to understand that the purpose of monetary bail or any kind of conditions of release is to ensure that somebody comes back to court while they have an open case. Somebody gets arrested, they’re charged with a crime, they’re innocent until proven guilty, and we have a mechanism by which to determine guilt, which is a court process, which either ends in a plea deal or a trial or with the case being dismissed. And bail is all about the person’s release and their conditions during that process.
So these are not individuals who have been determined to be guilty of anything. These are individuals who have been charged with something. And our Constitution protects the presumption of innocence. And a lot of states choose to secure somebody’s return to court by imposing conditions of release, one of which might be monetary bail.
So before the reforms that went into effect in 2020 that were passed in 2019, New York basically had no restrictions on when bail could be set. So in every single case where a person was charged with any type of crime, the prosecution could ask for monetary bail, any amount. And I have to say in my experience, very frequently was totally unrelated to somebody’s ability to pay that bail. It was more related to the crime with which they were charged. And so my practice and my experience was in those years, the prosecution would ask for bail on pretty much every single case that came through. And now defense attorneys at arraignment would be arguing for certain kinds of release.
And what would happen also because of that is frequently people would take guilty pleas at arraignment in order to avoid going to Rikers Island or in order to just get the case over with. A judge would set $500 bail on somebody who couldn’t afford to pay that money. And instead of trying to proceed with the case and assert their innocence, an individual would just say, “okay, I’ll take a plea to five days jail.” They would go into Rikers, they would come out with a criminal record and that was a decision based on, if they were never going to be able to make that amount of bail, and could stay in Rikers Island for sometimes years [otherwise]. Even in misdemeanors back then, it took like 2 years to get to trial. So it was a decision more about freedom than about justice. That was frequent, and that was something that I walked into when I started my career.
Yeah, and the stats on this- I mean what you’re describing is horribly unjust for everyone, but I think what made it especially galling was the racial disparities, because with everything with the criminal legal system in New York, it’s disproportionately affecting poor Black people. Black people were, and Hispanic people were, like 8 or 9 or 10 times as likely to get caught up in these kinds of systems.
And that starts from the policing all the way through the court system.
And by definition, it’s going to be discriminatory against people that are poor because the metric is money. So if you have money, you could commit the exact or be accused of committing the exact same crime. If you have money, you pay the bail, your home, and you come back to court. And if you don’t, you go in. And that to me, my whole real reason for becoming a public defender was I could not understand why money should have anything to do with the outcomes in the criminal legal system, yet it is probably the number one determining factor.
I will also just say the difference between being incarcerated and being out while you’re fighting your case is pronounced in terms of the outcome of the case. It’s so much easier to prepare for a case with your attorney, to go through the different steps when you’re not incarcerated. When you’re incarcerated, just an attorney visit to Rikers Island takes 4 hours to meet with a client for 45 minutes. So it really hampers your ability to prepare a defense.
Can you give us the same high-level primer on discovery, which I think is even less well understood, and how that played out pre-2019?
Yes. Discovery is about evidence. It’s about the evidence in a case and the police reports, any sort of witness statements, that the prosecution has in its possession, that the police have in their possession, that demonstrates somebody’s guilt or innocence.
And New York had one of the most antiquated discovery laws in the country prior to the reforms. Essentially, you as an accused person were not entitled to any of that evidence against you until [the ]trial. And sometimes [the] trial would be, as I mentioned before, because of crazy backlogs, two or three years after an arrest. So a person could be sitting incarcerated or otherwise saying, “I want to go to trial, I want to see the evidence,” and they would not be entitled to it. And it would pretty much be at the will of the prosecutor whether they wanted to turn it over.
So New York’s discovery law changed. We followed Texas’s law, actually, which has what’s called open file discovery. which it’s just more fair. You just turn over everything. You turn over everything and individuals can see what the evidence is. And it actually leads to cases resolving more quickly because if there is a lot of evidence, people can see that. If there’s not, people can see that. And I think what’s been misreported in the discovery discourse and the rollbacks is the timeframes with which discovery have to be turned over.
You know, these are time frames linked to the speedy trial clock. Basically, the prosecution can’t be ready for trials until they turn over the discovery. But those are pretty substantial: for a misdemeanor, it’s 90 days. So it’s three months to turn over discovery, which is generally not extensive. And for felony cases, it’s six months. There are statutory deadlines, which are shorter than that, which are almost never followed because there’s no teeth if people don’t follow them, if prosecutors don’t follow them. And I think that it was a huge shift just in the ability for people to feel like, “okay, I know what this case is about. I’m able to see the evidence.” And honestly, it was common sense.
All these things crystallized in the case of Kalief Browder who spent three years at Rikers, much of it in solitary confinement, after being accused of stealing a backpack and had no discovery, had bail that he was unable to make. He was also a teenager, which brings the Raise The Age laws in. And it was a tragic case where this was an innocent kid who wanted to assert his innocence. And in so doing, spent three years incarcerated on Rikers horrible conditions, eventually his case was dismissed because the evidence didn’t exist, but it never left him what he had experienced, and he tragically committed suicide a couple years after that. And it’s really his case, that tragic story and the subsequent article in the New Yorker about it that brought attention in a larger way.
The other thing is none of these things made us more safe as a city because in fact, spending any amount of time on Rikers Island, a person goes in, when they come out, they’re going to be destabilized. They’re going to be in worse shape than when they went in. There’s no real mental health treatment. There’s not the capacity for medical care that people need. It actually makes us as a city less safe. And that’s the thing that I think is so important for people to understand is that when we talk about bail and some of the cynical takes on it and the fear mongering, in fact, were we to set bail at higher rates and have people go in for longer, it will make our city less safe in the long run. And it’s not a solution.
So 2019 was the first time that the Democrats had a trifecta in New York State for like 30 years, which is kind of a crazy thing to think about. This unlocked this backlog of decades of progressive legislation that people wanted to get done for a while. And one of the big ones was reforms to bail and discovery. And so just briefly, what were those statutory changes? I think there’s a lot of misunderstanding about how there is no cash bail in New York City anymore. So what actually happened?
Yeah. So New York, what the bail reform did was say that certain categories of offenses on your first, somebody’s like first arrest were no longer eligible for monetary bail. And those categories were generally most misdemeanors and nonviolent felonies. For quote unquote violent felonies, there was zero change in the law or the judge’s ability to set bail. And there were a bunch of exceptions to what I just said for certain specific offenses and situations, such as somebody being out and then picking up a new case.
So that’s essentially what it did. New York did not get rid of cash bail. It actually kept the status quo for serious cases. And it basically said, we’re not going to incarcerate or have the ability to set bail on less serious, less harmful cases on a person’s first arrest.
And with discovery?
Discovery went from a situation where basically police and prosecutors didn’t have to do anything on any timeline to providing a timeline by which they had to provide the evidence in the case. And that timeline, as I mentioned earlier, was linked to the speedy trial clock, saying that prosecutors, in order to proceed with the case and be ready, had to turn over all the evidence in the case.
And remember, this evidence is pretty much in the possession of the police department on the day of the arrest. So it’s just a matter really of technology, of getting the evidence. Now, some things need to be reviewed for redactions and stuff, but it’s really a matter of getting evidence from the police to the prosecutor to the accused. They had 90 days for misdemeanors and 180 days or six months for felonies.
Yeah, and this is something that I find really frustrating, the technical aspect. Zellnor Myrie, as a State Senator, proposed a bill that would just give prosecutors access to the police database where they hold all of their evidence. And not only did the police lobby against that, but DAs also lobbied against that. And they said, “no, like we want to do something different to change the system, which is just like rollback a lot of the reforms.” And I just thought that was a very revealing moment because it told me that the DAs are not looking to make evidence easier to access. What they’re looking for is to continue to use this as a tool to coerce people into taking worse plea deals.
Yeah, and I think that was actually my predecessor, Micah Lasher’s bill in the Assembly. But you gotta remember, Up until 2019 and 2020, the DAs and the police were used to getting their way in Albany. They were used to being the ones that people listen to in Albany. So their attitude from the moment that these reforms were passed, before they even went into effect, was, no, this is not gonna happen. Like, we’re not gonna do this. We’re just gonna work until it gets rolled back. And they never made a real initial intent to effectuate the laws. And then they would point later on, oh, dismissals are up. It was because they weren’t trying to follow the law. They weren’t trying to actually put the technical systems in place to share discovery. Instead, they were just failing to do it. And it was their failure that led to any drop in cases being able to proceed but they pointed to the law. And so it was really, it was a hard thing to see.
And actually, it’s those kinds of debates that were one of the big things that motivated me to run for office, because I could tell that the narrative was being manipulated and wasn’t reflective of the facts on the ground.
That’s a great segue. I want to just talk about the narrative right now. You were talking somewhat critically about DA’s like Darcel Clark and Alvin Bragg. Sarita Komatireddy is running for Attorney General. We’ll bracket the fact that the state Attorney General doesn’t have its own to do with this stuff. But just as someone with a bully pulpit to talk about criminal enforcement in New York, she gave this interview and generally on her stump speech on the campaign trail, she’s really fired up about bail and discovery. In her view, these laws were a huge mistake. [She thinks] we need to go back to the status quo and specifically her argument is that the laws make us less safe, that they’ve caused a huge spike in crime. So what can you tell us about high quality research and data about the impact of these laws and since 2019?
Yeah, I think her take on this is divorced from statistics or reality. And I think when she talked about this in her, she had a recent interview with the [New York] Editorial Board, it was pointed out that in fact, if you look at the data from the time bail reform went into effect until now in New York, there is no increase in crime. [Editor’s note: the data is mixed.] And there have been zero studies, and there have been a lot done, linking bail reform to any uptick in crime.
I think we have to put this in a context. This is straight out of the Trump playbook. It’s directly lifted from things he was saying in 2020 running against Joe Biden. And I think that’s a really key thing when we talk about bail reform. Remember, it was voted on in 2019. It went into effect in 2020. And by the time it went into effect, there were already calls for rollbacks. People were already working to roll it back before it even went into effect. And then the pandemic happened. And I think on April 1st of 2020, which was about two weeks into the pandemic, rollbacks were passed that went into effect in July.
And then that whole summer, you had Trump ranting about Democratic cities with cashless bail and making it a campaign issue. And there was a lot of unrest and crime and certain categories of crime went up during the COVID pandemic, especially in 2020 and 2021 across the country, in every state and major city, the vast majority of which did not pass bail reform laws.
And so there was this feeling of unrest that we all shared, and there was an intentional effort by people like Donald Trump to link it to bail reform as a political tactic. Now that we are six years out and the data has been looked at, what we found is that in fact, You’ve had something like 90,000 individuals that didn’t have bail set on them that they would have had before. You have over $100 million in money that families would have had to spend on bail that they didn’t have to spend. You have people who have been able to keep their jobs, stay with their families, and fight their cases. And we have seen 0 increase in crime.
And so that’s the facts. And I think what some candidates want to harp on or exploit is a feeling of fear and divisiveness, and that’s just the playbook of the Republican Party. And I don’t think voters want that, and I believe that they will reject it.
Eli Miller
Yeah, there are two high-level causal studies… there’s something called interrupted time series analysis where you can see what happens before and then after and try to directly attribute changes in something you’re studying, whether that’s crime rate or something else, to a specific policy change. And those studies are pretty clear that there is no impact on crime or on any of the other things that you’d worry about from the change of the law and that to the extent that crime, it’s exactly what you said, that there are national trends, there are lots of other dynamics happening.
But I think this really wasn’t widely understood, even outside of the Republican Party. I think a lot of Democrats are running scared on this issue. As you get ready to enter the state legislature, how are you thinking about trying to maybe get some momentum back for the criminal legal reform movement? I know that there are definitely a lot of things that still need to be done, whether it’s putting pressure to close Rikers, or sentencing reform. So what do you think is next and how do you think Democrats need to regain their mojo on this issue?
I think the narrative got away from Democrats. And I think one of the reasons that it did, and this was something, again, that was frustrating to me from being on the outside and motivated me to want to actually be part of the legislature. These are not the easiest concepts to understand or explain. And if you haven’t spent a lot of time in a courtroom and understand how the words work and how they actually play out and can do the myth busting and then it’s hard to push back.
But I totally understand that because it is complicated. I think it’s one of the things I think I can bring is the ability to talk about the facts because I’ve practiced for this time and I understand how the statutes work and they function. And I think when we look, it’s not just that New York hasn’t increased in crime because of bail reform. The stories that aren’t being told because they don’t make headlines and they’re not as splashy or interesting are all the people’s lives that were improved by not having to spend time in Rikers Island. And that’s a lot of people who I have represented and seen and whose lives have been tangibly impacted and affected. And it’s harder to make those stories salient but I have internalized them and I’m coming at this not as somebody who doesn’t think that people don’t need to face accountability for their actions or that we shouldn’t have some sort of system that fairly evaluates behavior and harm done and has an answer to it, but as somebody who has seen that the old way that we did things made us less safe and did not produce the kind of communities and city that we want to be part of. So I’m looking forward to bringing that message up. I think that the people that are most impacted and the communities that are most impacted by criminal justice, the inequity in the criminal justice system, by design, the truth is they have the least political power.
And that’s the problem with the movement is that it’s like only when it becomes sexy or cool that people care about it. And it’s impacting communities every single day, still, negatively. And there’s a huge racial disparity in the criminal legal system that has not stopped. And I really think that is most pronounced right now in our upstate prison system, where we have over 30,000 people, many elderly New Yorkers, who are serving sentences that they received in the 80s and 90s that they just would never have received today because we’ve come around on our thinking about sentencing and we just don’t sentence in the same way. But because they’ve exhausted their appeals, they have really no options and there’s no way to give them a different chance without some legislation to remedy it.
So there’s a package of bills, Communities Not Cages bills that would really address this. A couple of them, one is the Second Look Act, which would give long-serving prisoners the ability to apply to a judge to just say, “hey, look, I’m not the same person I was when I was sentenced for this crime.” And it just gives the judge an option to look at it and say, “this person has done a lot. This person has turned their life around. This person is deserving of a second chance.” And those bills have been passed in other states. New York has not done it yet. And then there’s also one called the Earned Time Act, which would increase the amount of time a person can earn for good behavior and participating in programming. And again, New York is way behind states like Oklahoma and Alabama in the amount of time somebody can earn off of their sentence.
We passed Truth In Sentencing laws in the 90s to get federal money. And we haven’t gotten that federal money for decades, but we never changed our laws back. So I think there’s an urgency to this. I think it will make us all safer to bring those New Yorkers home to our communities. These are people that are mentors. These are people that have changed our lives. And all of these laws count on people to earn that second opportunity. I don’t believe in throwing a person’s life away based on an offense they committed. I really believe in redemption and the fact that people can change and people’s humanity. And I think that New Yorkers do care about that and just need to understand it a bit more because it becomes a very black and white issue, especially when you have Attorney General candidates who want to make it such.
Yeah, and I would just throw in one more thing there, which is if for some reason, the image of a 65 or 70 year old man who was arrested for something they did when they were 18, 19, 20, if that alone isn’t enough for you to feel like you need to do something about this, we’re currently spending $50 million a month to put the National Guard in our prison system because our prison system is so messed up from the illegal strikes of last year. So reducing the population would not only have huge impacts for families and for justice, it would also just be a solution to this crisis that we’ve been going through for the past year plus.
Yeah, there’s an acknowledged crisis in the prison system, and the way to accomplish that is not to hire a bunch more prison guards. to decarcerate. And I also think that many people who work in prisons understand that when you have more programming and more incentives for good behavior, then it actually makes the prisons a safer place.
Yeah, well, I’m really excited to see what it looks like when you get to Albany and start working on these issues. I hope all of your colleagues and their voters listen to this podcast and hear your pitch out. Thank you so much for coming on the podcast, I really appreciate it.
Of course. Thanks for having me.
