In 2005, David Soares’ arrival to the Albany County district attorney’s office marked a victory for criminal justice reformers in New York’s capital county. Backed at the time by the progressive Working Families Party, Soares railed against the harsh mandatory minimum sentences imposed by the state’s notorious Rockefeller drug laws, ultimately landing 55 percent of the county’s vote. 

Two decades later, Soares is still in office, but his persona has changed markedly. He has used his pulpit in recent years to attack a trio of criminal justice reforms passed by New York’s Democratic legislature, and to pressure lawmakers sitting in the New York State Capitol, which is just a few minutes from his office by foot, to undo them.

Legislation that reformed the state’s bail and discovery laws, and raised the age at which young people can be prosecuted as adults, “sent the wrong signal to criminals; a green light,” Soares wrote in testimony submitted to a legislative hearing on criminal justice last February. His message in recent years, which has garnered support from tough on crime conservatives, has been consistent, drawing a direct line between these reforms and violent crime in Albany County. 

As president of the state’s influential DA association in 2018 and 2019, Soares became one of the state’s most vocal opponents of these changes. Since their adoption, he has helped lead a steady rhetorical drumbeat against them, undergirding a series of rollbacks that have attracted support from politicians of both parties. 

Next week, in the county’s Democratic primary, Soares faces a challenger with a different perspective on justice reform in New York. While longtime criminal defense attorney Lee Kindlon doesn’t shy away from pointing out high rates of violent crime in Albany County, and says the reforms in Soares’ crosshairs are imperfect, he has also seen their positive impact firsthand and doesn’t blame them for crime in Albany. 

Kindlon says Soares’ opposition to these policy changes is off-base, and a distraction from a larger problem. “I think he assails the system as a way to just have somebody to blame for his own failures,” Kindlon told Bolts. “I mean, I really just think it’s a cynical ploy to rail against these reforms, because he’s out of good ideas.” 

Throughout his campaign, Soares has painted himself as a voice of reason that won’t hesitate to continue his crusade against a legislature that he believes has endangered communities through its embrace of reforms.

“All in all, the implication that you can’t implement the laws, take note of their effect, then critique them, is absurd,” Soares told Bolts in a statement. 

The Albany County Democratic Committee withdrew its endorsement of Soares earlier this year, though it hasn’t endorsed Kindlon. This time, the Working Families Party, the group that was once a Soares ally but has also fiercely championed the state reforms he’s opposed, is backing his challenger.

Kindlon jumped into the race this spring as an alternative to the incumbent, after news broke that Soares had awarded himself a $23,000 bonus using grant funding from the state’s Division of Criminal Justice Services (DCJS). After a flurry of press attention, Soares returned the cash, but defended his choice to take the funds in the first place, arguing that using the grant to give himself and other staff bonuses had been approved by DCJS. 

Kindlon, who previously lost a challenge to Soares in 2012, saw the funding snafu and decided this was his moment to offer Albany an alternative. 

On the campaign trail, he points out the controversial bonuses along with what he says is a staff retention problem in the DA’s office. But Kindlon also differs from Soares in his view of criminal law reforms and the role of a DA in carrying them out.

Local Democratic officials have split their endorsements since Kindlon’s entry into the race. While Soares has the support of law enforcement unions and Democratic County Sheriff Craig Apple, Kindlon has been endorsed by Albany County Executive Daniel McCoy, and by Albany Mayor Kathy Sheehan, who announced she was backing him in May “because we deserve a District Attorney who follows the law, regardless of whether they agree with that law.”

Anita Thayer, a longtime Albany attorney and former secretary of the Working Families Party’s capital district chapter, is similarly concerned about Soares’ positions on reform. “The legislature has done a lot to pass good progressive criminal justice laws, and we need a district attorney that’s going to work to implement the laws and work to get the resources he or she needs to implement the laws,” Thayer said. 

“We don’t need someone that spends that time simply bashing the legislature,” she added. 

Some of Soares’ recent criticism has focused on the state’s “Raise the Age” law, passed in 2017. The law increased the age at which a child can be prosecuted as an adult from 16 to 18, bringing New York into line with the majority of states in the country. Since then, critics like Soares have said the law lacks clarity and creates a lack of accountability for young people who commit crimes.

“Raise The Age is the gentle parenting public safety policy for those in most need of the serious intervention teenagers need,” Soares told Bolts in a written statement. “As far as ‘programming’ to fully implement Raise the Age, we used to have a program that would stop teenagers headed to drive-by shootings. It was called ‘removal from the community.’ Short of that, I don’t think anything will work to stop the incessant violence among 16 and 17-year-olds in the inner city.”

In July 2023, Soares called on the legislature to amend the law and remove hurdles to charging young people with violent felonies. Weeks later, Republican Assemblyman William Barclay cited Soares when he introduced a bill to roll back Raise the Age. 

Soares’ critiques of the state’s recent criminal justice reforms echo those from members of both parties, as well as many other prosecutors, sheriffs, and police leaders in the state. Ahead of the 2022 midterm elections, opponents of these reforms leveraged concerns about crime in New York state to successfully push the legislature to amend the 2019 bail reform law, which eliminated cash bail for most misdemeanors and some nonviolent felony charges, as well as discovery reform, which change the rules for how prosecutors must share evidence with the defense in a case. 

In 2022, Republicans’ gubernatorial nominee Lee Zeldin also routinely highlighted incidents of violent crime throughout the state, while voters in both parties polled that year cited crime as their top concern. It was a message echoed by New York Republicans, who flipped several congressional seats. Zeldin came within five percentage points of Hochul in this overwhelmingly Democratic state.

But Kindlon believes the attacks on bail reform are misguided. 

“I don’t think that bail reform is the danger that Soares wants to turn it into,” he said. “It’s not the primary driving force in crime here in Albany County.” Kindlon also noted that the county’s violent crime problem long preceded bail reform, and that judges still have and exercise ample discretion to set bail for people accused of violent crimes. 

A recent study from neighboring New Jersey, which largely eliminated cash bail in legislation passed in 2014 and enacted in 2017, found bail reform did not increase gun violence in the state. These findings square with research in New York City that found no increase in arrests of people who were granted supervised release rather than being held on cash bail, and had no negative effect on court appearance rates.

For Lukee Forbes, a longtime Albany activist and executive director of the youth empowerment organization We Are Revolutionary, getting Soares out of office is personal. At 15 years old, he was prosecuted by Soares’ office for providing two other teens with a tree limb used to assault a University of Albany professor. Forbes, who ultimately served seven years in prison, tells Bolts he struggled as a teenager with the death of his mother, running away from home repeatedly, skipping class, and turning to substances to cope. When he was locked up as a teenager, Forbes says he felt “like the system was punishing me for my trauma.” That’s a pattern he continues to observe in the capital region—struggling teens facing prosecution from Soares’ office, rather than getting the support they need to succeed.

Following the enactment of Raise the Age, 16- and 17-year-olds facing felony charges had their cases heard in a newly-created “youth part” of the criminal court system, and 16- and 17-year-olds with misdemeanor charges were automatically funneled into family court, where punitive resolutions are less severe than criminal court. When the cases of teens facing felony charges are heard in the “youth part,” prosecutors have an opportunity to argue whether the case should stay in the criminal court system or be moved to family court. Between 2019 and 2023, the majority of 16- and 17-year-olds arrested in Albany had their cases transferred to family court or probation, but that percentage has mostly declined over time, according to data from DCJS.

“What I see from his office personally, I can’t ignore,” Forbes told Bolts about Soares’ charging decisions. “I see them taking advantage of a community that has a lack of understanding of the law, I see them taking advantage of family members who just want to get back home, I see them taking advantage of young people, of people who just don’t understand what is going on.”

In Albany County, Black people comprise roughly 14 percent of the population, but 44 percent of felony adult arrests. Doctor Alice Green, a lifelong advocate for racial justice and criminal justice reform in the county, is particularly concerned about how Black teens are being treated by Soares’ office, and says Soares, who is Black, has alienated a community that once supported him. “There has been concern in the Black community about how he treats Black people,” said Green, who is also Black. “There’s a mistrust there.”

Soares, however, insisted that Green doesn’t speak for Albany’s Black community, and told Bolts she “represents the political interests of defendants and white liberals.” 

Rather than leveraging the potential of Raise the Age to divert even more young people out of the adult system, Green says, Soares continues to insist dangerous young people should be funneled into adult facilities. “All the research tells us that if you put a kid into a secure facility or a prison, that they are going to eventually come back and recidivate and cause more damage, and they’re going to be harmed mentally,” said Green. 

Green says the county is failing to make use of state funding provided for diversion programs, and wants to see more cooperation between the DA’s office and other county offices and local nonprofits that serve kids. 

Forbes says he wants the DA’s office to do a lot more to confront the root causes of crime: “We need to really focus on addressing why kids are moving towards guns in the first place, versus just locking kids up and sentencing them to adult time.”

But Soares says that the failure to prevent kids from both perpetrating and being victimized by gun violence rests with legislators. 

“I still believe in second chances, and fairness, but as I did in 2004, I believe Black children should be able to learn and play without bullets whizzing past their heads on a regular basis,” Soares told Bolts in an emailed statement. “Holding gun-wielding teens accountable is a common-sense way to aid in that cause, which shouldn’t be controversial.” 

In spite of his opposition to Raise the Age, Soares has supported some new alternatives to incarceration and programming intended to help people with criminal convictions successfully reintegrate into the community. In 2017, he announced a “clean slate” initiative that diverted 16- to 24-year-olds with nonviolent felony convictions into a program designed to support them in finding work and staying in school, ultimately sealing their records if successfully completed. At the same time, Soares has blamed bail and discovery reform for decreased participation in diversion programs such as drug courts. 

Kindlon agrees with Soares on one thing: Gun violence in the county is a big problem. If he takes the helm of the DA’s office, Kindlon says he’ll focus on charging people and groups who funnel guns into the state, attempting to stem the tide of gun violence with conspiracy cases. Now, he says, the office is too focused on going after individuals.

“The main focus of gun prosecution here in Albany County is the young man with the gun and a car,” said Kindlon. “So they grab that guy, they grab the gun, they force him into a plea, and then it’s done.”

Kindlon also says he’s eager to invest the office’s resources in pretrial diversion programs, particularly for young people like those he has represented. He concedes that Raise the Age isn’t perfect and says he hopes the legislature will ultimately amend the law. But in the meantime, he thinks clarity about how to apply the law should come from litigation in the state’s appellate courts, which he would file if elected DA.

 “I would love for legislators to clear up some of the language and give some more guidance,” said Kindlon. “But in the absence of that, I understand that that’s what the courts are for.”

The DA’s office isn’t short on resources, particularly after the adoption of the laws Soares so fervently attacks. After the passage of discovery reform, Hochul secured $40 million to offset the costs of adapting to the law’s requirements. More than $2 million of that funding went to the Albany County DA’s office between 2022 and 2024, according to data shared with Bolts by DCJS, which administers the funding. 

Soares dismissed this investment as inadequate to address the burden imposed by the law. “Discovery reform has achieved nothing but the reduction of staffing in prosecutors’ offices,” he told Bolts. “No matter how much funding is thrown at discovery reform, it still burdens a prosecutor with administrative tasks as opposed to furthering investigations.

DA offices statewide also received a massive boost in “aid to prosecution” funding from the state in the last year. While in fiscal year 2022-2023 Albany County’s DA office received $176,540, that number soared to $943,253 in 2023-2024. Over the same time period, the office received a $400,000 boost in funding through Hochul’s Gun Involved Violence Elimination (GIVE) initiative. 

Kindlon wants to leverage some of these funds to ensure effective alternatives to incarceration exist.

“We’re Albany County; we’ve got resources, we’ve got brains, we’ve got opportunity,” he said. “Let’s bring together all the stakeholders and the nonprofits who want to see these things work, to community groups who want to see young men and women return to school, to support systems that we can build.”

Forbes believes Kindlon is more open than Soares to engaging in meaningful conversations with him and other concerned community members about how to address the root causes of crime in Albany. But ultimately, he needs to see him in action to believe he has something different to offer.

“We won’t see what a district attorney or any politician is really going to be like until they’re in those offices,” said Forbes. “David Soares was the golden child…and now, he’s flipped the script and is a completely different person.”

The post Albany’s Incumbent DA Battles a Challenger—And State Criminal Justice Reforms appeared first on Bolts.

After Chicago police arrested Luis Gonzalez on an illegal gun possession charge in 2022, getting out of jail was his immediate concern. He didn’t have $200 to post bail, but being stuck in jail threatened to cost him his job at a West Side gas station and his ability to care for his four children.

“The first thing in my head was my kids,” Gonzalez said. “I would’ve lost my job. I probably would have lost my kids.”

His first call from jail was to the Lawndale Christian Legal Center, a neighborhood group where Gonzalez had often referred others to get help when they were in a jam. The organization paid for Gonzalez’s release and got him a lawyer for his case. He went home to his kids and soon returned to work at the gas station.

But even though he was out of jail, Gonzalez felt like he’d overcome one hurdle just to end up back in the exact same situation that landed him in trouble in the first place. Prior to his arrest, Gonzalez dealt constantly with dangerous situations during his evening shifts at the gas station, often breaking up fights between belligerent customers. He says that he’s twice been robbed at gunpoint during his shift.

Gonzalez, who lived with his kids just a few blocks from the gas station, says he felt he needed to get a gun for protection after someone started shooting at him one night as he walked home with groceries in hand. He says that breaking up fights at the station and calling the police on troublemakers had made him a target. Gonzalez walked away from the shooting unharmed but three of the bullets hit his car parked outside his home. 

“I was in total fear. I couldn’t quit my job, and this was my only income to pay rent and support my kids,” Gonzalez said. “Even after getting shot in my house, I couldn’t afford to move. I went to get a weapon, not to be a menace. I wasn’t out here gangbanging, I was just trying to make a living for my family.”

Within a month of Gonzalez acquiring the gun, police arrested him after they found it during a traffic stop. Getting out of jail helped prevent his life from spinning even further out of control, but he says it was the support he received after his release that dealt him a new hand in life.

Lawndale Christian Legal Center, the group that bailed him out, brought him into a program, Community Release with Support, designed to address the underlying needs of people on pretrial release by linking them with services for housing, addiction treatment, job training and transportation. Since housing was his most urgent issue, they enrolled Gonzalez in a program funded by the Chicago Low Income Housing Trust Fund so he could move his family to a place they felt safe. The program connected Gonzalez with a landlord in their network and helped him pay rent so that no more than 30 percent of his income was going to housing.

Gonzalez says those resources allowed him to move his family out of a two-bedroom basement unit and into a four-bedroom home with a yard where he likes to barbecue for the kids when the weather is nice. His new neighborhood is far enough from the gas station that problems at work are unlikely to follow him home anymore.

“If I didn’t have these resources, I would’ve been still stuck in the same apartment, the same area,” Gonzalez said. “I would’ve probably still been in jail. I would’ve, for my own safety, ended up catching another [gun] case just to make it back and forth to work.”

The program that helped Gonzalez get out of the situation that led to his arrest in the first place was a local pilot, but advocates for criminal justice reform are now asking Illinois lawmakers to expand access to these types of community-based programs across the state.

Many of the same advocates who successfully pushed for the state to abolish cash bail last year are now hoping to build on that reform with The Pretrial Success Act, a bill filed this legislative session that would direct $15 million to community organizations around the state to provide voluntary services to people awaiting trial. The legislation would offer grants of up to $500,000 for these organizations to develop and scale up programs that offer everything from clinical behavioral and health services to transportation, child care, and case management for people on pretrial release in accordance with their needs, in order to improve their odds of success.

“The idea is to get to the root causes,” said Rebecca Levin, Vice President of Policy at Treatment Alternatives for Safe Communities (TASC), an organization that provides community-based treatment and recovery support for people with mental illness and substance use disorders. 

The bill, introduced in February by State Senator Elgie Sims and State Representative Maurice West, has been widely supported by social service agencies across the state. Supporters say that it builds on prior Illinois grant programs aimed at improving public safety using community investment—such as the 2021 Reimagine Public Safety Act that established a public health approach to gun violence prevention and the Restore, Reinvest, Renew program launched in 2019 that directs a portion of cannabis tax revenue into disinvested communities. This year’s Pretrial Success Act would be the first to specifically target services for pretrial defendants released from jail. The bill is currently being debated in the Senate Health and Human Services Committee and the House Public Safety Committee. 

Levin, whose organization was a key partner in drafting reforms to strengthen services for people released from jail, says the bill is built on a belief that mental health and substance use problems should not be addressed through the criminal legal system. Incarceration has historically been used as a catchall solution for addiction and mental illness, even though incarcerated people rarely receive the necessary care for those conditions, compounding behavioral health problems and magnifying the risk of overdose and suicide after release, Levin said.

“The behavioral health issues and violence have the same root cause, and it’s really the cycle of trauma,” Levin said. “Folks who are traumatized often look to cope through substance use. Folks who are traumatized may experience mental illness. Investing in these behavioral services is about interrupting this cycle of violence and trauma.”

Levin calls the Pretrial Success Act a critical next step after the state abolished cash bail last year. Lawmakers passed the landmark reform, known as the Pretrial Fairness Act, in 2021 to get rid of cash bail and make it so that a defendant’s release no longer depends on their ability to pay bail, but rather only if a judge determines that they are either a flight risk or threat to public safety. After overcoming legal challenges by Illinois sheriffs and prosecutors, the law finally took effect last September.

Advocates in the Illinois Network for Pretrial Justice, a partnership between dozens of organizations that worked to develop the Pretrial Fairness Act and lobby for it in Springfield, say that ending cash bail was only the starting point for reshaping the criminal legal system’s role in keeping people safe. 

Under the old system, cash bail was used as collateral to ensure people who were deemed by a judge to be safe to release would attend court dates and wouldn’t reoffend. But in effect, advocates say, jailing someone solely due to their inability to pay disrupts critical needs in their life like employment, healthcare, childcare, or any educational path they might be on. Instead of making communities safer, they say mass incarceration based on people’s inability to pay bail only created more financial desperation and broken families, fueling the kind of instability in poor communities that can lead to crime.

Since the Pretrial Fairness Act took effect last fall, more people throughout the state are now awaiting trial at home with their families rather than behind bars. In Cook County alone, the jail population has declined by 13 percent since cash bail was abolished, according to data from the Sheriff’s Office. Advocates for this year’s pretrial reform bill say that boosting wraparound services for people awaiting trial will not only enhance public safety but help reinvest resources in communities that have long been harmed by mass incarceration. 

“We have communities that have been disinvested for generations. Ending the extraction of wealth from communities through money bonds was an essential first step, but we have to invest in those communities as well,” Levin said. “A piece of that is building up support and services that will allow people to be on a positive path while they are waiting for trial. Ultimately the goal is to reduce involvement in the criminal legal system.”

Gonzalez made it to every court date, thanks to phone and text reminders the Community Release with Support staff sent him. Since Gonzalez lost his car due to the arrest, the program also supplied him with transportation anytime he needed help getting to court or coming home from work. Eventually, he accepted a plea that resulted in no jail time.

“I took full responsibility for having the weapon. Sometimes we make mistakes. Sometimes we get caught up doing things that we shouldn’t. But that’s not the end,” Gonzalez said. “Catching this case was a bad thing, but for me it was my blessing in life. They opened up a lot of doors for me.”

Matthew McFarland, vice president of Lawndale Christian Legal Center and former director of the program that helped Gonzalez after his release, says over 3,000 people have participated in the program so far. The neighborhood legal center launched Community Release with Support at the end of 2021 as a two-year pilot program with the Bail Project, a national nonprofit that pays bail for those who can’t afford it and donated $2.9 million for the program. In anticipation of the bond reform law that would soon take effect, McFarland says the project was designed to be a scalable and replicable model for using community investments and social services as a replacement for cash bail. 

McFarland says the project has been an overwhelming success: According to the organization’s data, participants made it to 98 percent of their court dates. 

“Most people plan to meet their court dates. But there’s last minute things that happen like childcare, or issues with their rides. That’s why they don’t make it to court,” McFarland said. “When people are able to fight their case from a position of freedom, they can also address the things dragging them into the criminal legal system in the first place, and they tend to have better outcomes.”

Participants also tend to have favorable outcomes in their cases, McFarland said. Over half of the cases that went to trial ended in a dismissal, and the vast majority that ended in conviction resulted in no additional jail time. 

McFarland says that in addition to helping people make court dates, the program also connected participants to support and social services that helped them make improvements in their lives—like furthering their education by completing their GED or enrolling in trade school, or help navigating child custody issues. Community Release with Support linked over 1,000 participants with employment services, while over 740 were connected to education or training programs. More than 250 clients were connected to housing services, including at least 50 families who enrolled in the same program that helped Gonzalez move his children into a safer home.  

“These things matter for judges,” McFarland said. “Nobody wants to lock somebody up who is succeeding in the community. 

Advocates for reform say funding from this year’s Pretrial Success Act would help scale up such wraparound support programs across the state. The legislation directs the Illinois Department of Human Services, which would allocate the grants, to spread the money among organizations offering programs in each judicial circuit area. The law would also create local advisory councils to recommend how the grants should be allocated in each service area, which must include people with personal experience of being charged with a felony in the state.

Levin with Treatment Alternatives for Safe Communities says her organization, which already operates programs across the state, would be able to expand existing case management services already offered for people on probation and cater them to the specialized needs of people released from jail before trial. Lauren Wright, executive director of Illinois Partners for Human Service, says the legislation could help grow social services outside of the Chicago area, where services are already sparse and may not have the capacity to meet the growing needs of people on pretrial release. 

Transportation challenges are also magnified in rural areas, where there are few service providers separated by long distances with limited public transit. Wright says it is also tougher downstate to recruit and retain staff members to provide the necessary trauma-informed services for people on pretrial release.

“There are unique issues that individuals and human service providers face downstate,” Wright said. “Organizations are really struggling already to meet the needs of community members.”

McFarland knows personally how helping someone deal with the underlying issues that led to their arrest can allow a person to set a new course in life. He’d cycled in and out of the criminal legal system for decades, and by his final arrest in 2015 he had a rap sheet 60 pages long that he says “reads like a horror story of somebody who is battling a horrible heroin and crack cocaine addiction.”

McFarland says his own turning point came when, rather than incarcerating him, the court handed him off to a community-based treatment provider where he could recover from his addiction. 

“I was able to get those root causes addressed,” McFarland said. “Amazing things happened. I started making it back to court, and I had the judge cheering me on. I completed treatment, and I was sober. I got a job. I got my driver’s license. The trajectory of my life changed.”

The post Illinois Ended Cash Bail. Now Reformers Want More Support for People on Pretrial Release.  appeared first on Bolts.

Foxx’s presence in Cook County has reassured advocates for bail reform. While prosecutors often undermine the implementation of criminal justice reforms, she has staunchly defended the law against its critics. First elected in 2016 on progressive promises, Foxx reduced her office’s use of cash bail well before the Pretrial Fairness Act took effect last year, even as local defense attorneys pressed her to make even bolder changes. 

But Foxx chose to retire this year rather than seek reelection, leaving the nation’s second biggest prosecutor’s office open for the taking. Voters will now decide who oversees the abolition of cash bail in Chicago for years to come. 

In this staunchly blue county, the Democratic primary on March 19 will likely decide Foxx’s successor, and reform advocates are wary of what this means for the future of pretrial detention. 

“Cook County previously elected a state’s attorney that championed these reforms,” Matt McLoughlin, an activist and cofounder of the Chicago Community Bond Fund, told Bolts. “There are real concerns about who takes control of the largest prosecutor’s office in the state and what role does that individual play in policymaking in the capital.” 

The two Democratic candidates vying to replace Foxx—Clayton Harris III, a former assistant prosecutor, and Eileen O’Neill Burke, a former judge who also worked as a prosecutor—have both expressed broad support for the Pretrial Fairness Act. They’ve both praised the law, and neither is trying to win the election by fearmongering over its effects, a marked difference from other prosecutors’ backlash against bail reform elsewhere in the country, and elsewhere in Illinois.

But O’Neill Burke has also blamed Foxx for being too lenient in some cases, signaling she’d turn the page on the incumbent’s reform priorities. Harris has comparatively aligned himself with the outgoing state’s attorney, whose tenure has seen a considerable decline in the local jail population. Local progressive leaders and the county Democratic Party recently coalesced around Harris as the candidate more likely to continue criminal legal reforms in Chicago.

In responding to Bolts’ questions on pretrial detention, Harris outlined a different philosophy than O’Neill Burke when it comes to how systematically he’d try to keep people behind bars. O’Neill Burke’s campaign declined to respond, but her public statements paint a more punitive picture of how she’d wield the considerable power that the Pretrial Fairness Act gives prosecutors. 

Under the new law, courts can still order someone detained pretrial—but only if prosecutors ask for it. This sets up a new decision point for them: It puts the burden on prosecutors to file detention requests with judges, and then prove at a hearing that the defendant poses either a danger to the community or a flight risk. 

“In effect, the state’s attorney has now become the gatekeeper,” O’Neill Burke told WGN Radio in January. “So it has become exponentially more important that the state’s attorney knows what they’re doing and that they put structure, training, criteria in place.”

Outside of Chicago, some state’s attorneys have taken a hard line in response to the new law, vowing to petition judges to order pretrial detention in every case that’s legally eligible for it, regardless of the circumstances. Patrick Kenneally, the state’s attorney of McHenry County, northwest of Chicago, says his office will ask for anyone charged with an eligible felony to be jailed. 

“We are filing all of those cases because we believe that based on the nature of the charge, that person is self-evidently a danger to the public,” Kenneally, a Republican running for reelection unopposed this year, told Bolts.

For reform advocates who championed the Pretrial Fairness Act, this approach goes against the spirit of the law. “Just because someone is facing an eligible charge, it doesn’t mean prosecutors actually have to have that person detained,” said McLoughlin. “They’re supposed to be using some discretion to determine if that person is a danger to the public.”

McLoughlin added, “At the end of the day, that isn’t about keeping the community safe so much as it is about projecting a tough image of law-and-order.”

For proponents of the Pretrial Reform Act like McLoughlin, the law wasn’t just about ending cash bail, but also reducing the number of people who are locked up in jail. Staying free while awaiting trial allows defendants to keep their jobs, continue supporting their families, and freely meet with their attorney to prepare their legal defense. Pretrial freedom also removes jail as a point of leverage prosecutors often use to pressure someone into taking a plea deal. 

“​​Jailing people awaiting trial increases the rate at which people will be rearrested in the future,” said Sharlyn Grace, senior policy advisor for the Cook County Public Defender’s Office. “It decreases their employment prospects and their earnings potential, and generally contributes to the opposite of what everyone wants for the community.”

O’Neill Burke has partially mirrored Kenneally’s blanket approach for some categories of cases. She has pledged to seek pretrial detention for “each and every” case involving a violent crime, as well as anyone charged with possession of a gun that’s covered by the state’s Assault Weapons Ban. (Gun possession is among the most common felony charges in Cook County.)

Harris has promised an aggressive approach to detaining those accused of violent crimes, but he told Bolts via email that he doesn’t share that blanket approach. The office under his leadership would decide on a “case-by-case basis” whether to seek a detention hearing over violent offenses, he said in a statement emailed by his campaign. 

For gun possession cases, Harris says his office would petition for detention if the gun was used to commit a crime, or if the defendant has a “record of violence.” Elsewhere, echoing a point made by some Chicago public defenders, Harris has expressed concern about the fact that gun possession charges disproportionately fall on Black men, saying they are likelier to carry guns for self-protection. 

For Madeleine Behr, policy director of Chicago Alliance Against Sexual Exploitation, prosecutors should consider their options rather than automatically seek pretrial detention, even in cases of domestic abuse and sexual violence. “For some people experiencing gender-based violence, they often call law enforcement to get the violence to stop in the moment,” Behr said. “But that doesn’t mean they are interested in pursuing charges or a commitment to moving forward with a case for weeks or months or years.” Prosecutors, she said, should “consult directly with the victim for what they would like to see.” 

Whether a prosecutor seeks pretrial detention is only the tip of the iceberg—while it may be the most visible part of their discretion, by that point they’ve already made a suite of other decisions that steer a defendant toward either jail or release.

Prosecutors have always leveraged their power to decide what charges to use in a case. For instance, they may stack charges or start by filing severe ones to pressure a defendant into pleading guilty on lower charges. Under the Pretrial Fairness Act, these charging decisions are also a decisive factor in whether prosecutors are allowed to request pretrial detention at all.

The new law states that courts cannot jail defendants who face some lower-level charges. The provision is meant to limit prosecutors and judges from using the elimination of money bail to increase pretrial detention.

But reform advocates are nervous that prosecutors who want more leeway to detain may respond by filing steeper charges for which pretrial detention is still eligible.

“Differences in charging decisions may be tied to the prosecutor’s desire to have the defendant detained pretrial,” said Ben Ruddell, director of criminal justice policy at the ACLU of Illinois. “If the prosecutor really wants to detain someone pretrial, then they might opt to charge someone” with a stiffer offense than they would have used under the previous system.

James Kilgore, director of advocacy and outreach for FirstFollowers Reentry Program, shares Ruddell’s worry. “One of the things they may do is stack charges and create felonies out of misdemeanors,” he told Bolts. “Whereas before people were going to be kept in jail anyway because they didn’t have bond money, now they have to have a serious charge in order to be kept in jail or on electronic monitoring.”

Here too, O’Neill Burke’s statements signal that she would take a more aggressive stance than the incumbent and her leading competitor. 

For instance, Foxx has set a policy to prosecute retail theft as a misdemeanor, rather than a felony, whenever the value of stolen goods is below $1,000. Harris has said he would continue this policy but O’Neill Burke has denounced it. “Just not prosecuting crime doesn’t deter it, it promotes it,” she told WGN. She says she would charge all retail theft cases where the value exceeds $300 as a felony, as state statutes allow. 

Retail theft charges are not eligible for pretrial detention even at the felony level, so that policy alone would not change the jail population. Still, it provides a window into O’Neill Burke’s interest in dialing up the range of charges her office uses. “I do not believe that they promote a thriving, safe city,” she told the Chicago Sun Times about the Foxx administration’s policies.

Harris, meanwhile, has said he’d give Foxx an “A” for what she’s done during her tenure, saying she has mostly erred in not communicating the benefits of her reforms. 

The next state’s attorney will also steer office policy on electronic monitoring. When they’re not seeking pretrial detention, prosecutors can still ask for release to come with certain conditions, like ankle monitors.

Illinois’ ankle monitor system has been rife with errors; 80 percent of alerts received by local law enforcement as of 2021 were mistaken, a University of Chicago analysis found. Still, a violation may allow prosecutors to ask that the court detain someone. “Given the inaccuracy of these devices and their propensity to create false alarms, this can also be an opportunity to send people back to jail for violating their release conditions,” Kilgore said.

So far, the new system hasn’t resulted in more Chicagoans placed under house arrest as they await trial.

The winner of the Democratic primary between Harris and O’Neill Burke will move on to the general election to face Republican Bob Fioretti, a former alderperson unopposed in his party’s primary. Fioretti has attacked bail reform as dangerous and says Foxx’s office is “erring on the side of letting criminals walk free.”

Fioretti faces long odds in November because Cook County is overwhelmingly Democratic. But sitting prosecutors elsewhere in the state are using similar rhetoric to say the new law is forcing them to release people who should be locked up. They’ve often spread incorrect information to make their case, like Kankakee County State’s Attorney Jim Rowe’s claims that courts can no longer jail fentanyl dealers and carjackers, or McLean County State’s Attorney Erika Reynolds’ statement that misdemeanor domestic violence cases are now ineligible for detention. 

In fact, defendants can still be detained over drug sales, carjacking, and misdemeanor domestic violence, depending on the circumstances.

Opponents of the law have also argued against any bright line that shields some categories of charges from pretrial detention. In 2022, the Illinois State’s Attorney Association, a group that represents prosecutors in the state and typically advocates for more punitive policies, pushed for a bill that is no longer active to allow the court to jail people on lesser charges.

Kenneally, the McHenry prosecutor, wants to make more charges eligible for pretrial detention. 

“My fundamental critique is that, very often times, when people are being charged with these non-detainable offenses, they are in a position to commit more crimes,” Kenneally said. “If their criminal history suggests they will continue to commit crimes, it has taken the discretion of prosecutors and judges to hold those people.”

“We can’t hold somebody on concealing a corpse or concealing a murder, but we can hold them for pushing their boyfriend or throwing a piece of pizza at their boyfriend, and it’s fundamentally absurd,” he told Bolts. (The charge of concealing a homicide is eligible for pretrial detention if prosecutors demonstrate a flight risk.)

This continued conflict over the law’s future would be resolved in Springfield, but the identity of the next Cook County state’s attorney may still shape those developments.

In championing bail reform, Foxx provided a counterweight to the positions of the Illinois State’s Attorneys Association, a role similar to what reform-minded prosecutors have done elsewhere in the country. Cook County alone makes up 40 percent of the Illinois population, and its lawmakers enjoy a lot of clout in the legislature. 

This made Foxx a punching bag for more punitive Chicago officials and other prosecutors, but reform advocates say her pushback against misinformation was essential for the law’s survival. 

“It was hugely important that State’s Attorney Foxx was a supporter of the Pretrial Fairness Act, an advocate and a defender of the law, and a thought partner in its development,” said Grace, of the public defender’s office. “It absolutely matters that we have a state’s attorney who is engaged in good faith efforts to protect this historic transformation of our pretrial system.”

Correction (March 4): The article has been corrected to reflect that the bill to enable pretrial detention for low-level offenses is no longer active.

The post As Kim Foxx Exits, Chicago Is Choosing the Next “Gatekeeper” of Its Bail Reform appeared first on Bolts.

That’s when the Pretrial Fairness Act, which bars judges from making defendants pay money for their pretrial freedom, will finally go into effect. The act, which also creates a new process for prosecutors to petition to keep defendants behind bars, was part of a larger reform bill, the SAFE-T Act, that Illinois lawmakers passed in early 2021 and that sheriffs and prosecutors sued to block, delaying its original implementation date earlier this year. 

But the state Supreme Court found the law to be constitutional in July, paving the way for cash bail to disappear from Illinois courts next week. 

For the advocates who lobbied in favor of the law, some of the hardest work now begins to make sure that it actually reduces jail populations.

Matthew McLoughlin, an organizer with the Illinois Network for Pretrial Justice, said organizers held court-watching training sessions for activists throughout August to monitor implementation and gather information so they can defend the reforms from vociferous critics. He said the group plans to have between 20 and 30 people ready to court watch in nine counties starting next week, including Cook County and Winnebago, which have the two largest county jails in the state, with the goal of observing 75 detention hearings and 100 initial appearances in the first month of the law’s implementation. 

“I really think the advocacy begins now,” McLoughlin told Bolts. “What we’ve found is that if the community doesn’t stay involved, we don’t actually get the outcomes we fought for.” 

In all other court systems across the country, judges can require defendants to pay money as a condition of being released pretrial under the pretense that it will ensure they return for future court dates, a system that keeps people locked up when they are too poor to pay.  Such pretrial detention can have lasting consequences, such as costing people their employment and housing—harms that fall largely on defendants of color who face significantly higher bail amounts. 

For the Illinois activists who have been pushing to end this system, the ultimate goal is not eliminating money bond per se, but reducing the number of people jailed before trial. Court watching is a way to make sure the numbers actually decline. While judges can no longer set money bond after next week, they may still reach for other punitive measures in its place—electronic monitoring, for example, or simply deciding to detain people rather than release them. 

“We are concerned with the spirit of the law being implemented and not just the letter of it, and that’s where court watching comes in,” said Briana Payton, senior policy analyst for the Chicago Appleseed Center for Fair Courts.

Once the law is in effect, if prosecutors want someone to be detained, they will have to file a petition and prove in a hearing that a defendant poses a “real and present threat” to a person or community’s safety or that they are likely to engage in “willful flight” from court dates to avoid prosecution. The hearings must be “individualized and robust,” explained Sharlyn Grace, senior policy advisor for the Law Office of the Cook County Public Defender. People accused of a crime have to be represented by “meaningful” legal counsel, Grace said, which means the accused and their lawyers have to have an opportunity to actually discuss the case together before the hearing. Their counsel must have the opportunity to present evidence and rebut the state’s evidence and case for detention or, in the case of a release decision, against any pretrial conditions like electronic monitoring or drug testing. 

Electronic monitoring or home confinement, according to the law, can only be imposed if there are no other less restrictive conditions that would ensure people come to their court dates and don’t harm others. 

The law allows counties to continue using algorithmic risk assessment tools that purport to rate people based on the risk they pose of committing more crimes or dodging court dates by comparing their characteristics with past court data. These tools are riddled with racist biases, but under the law, the assessments and what goes into them must be shared in open court and counsel can challenge the recommendations. The law says these risk assessment tools also cannot be used as “the sole basis to deny pretrial release.” 

A judge must then make a finding about why a person should be detained or, if released, why restrictive conditions are necessary. The judge’s decision “is transparent and reviewable and can be contested,” Grace said; it can be appealed to a higher court. 

These hearings will be substantially different from what currently happens when someone is assessed for bail. “Right now a lot of bond hearings in Illinois last minutes or even seconds,” Grace said, adding that some have been done over the phone or even email. Those who are represented by legal counsel often meet them for the first time in front of the judge, with little opportunity to explain their side or compile evidence.

The law requires detention hearings to happen in person except for when operational challenges or public health emergencies make remote hearings necessary, although advocates worry the exception will be used too broadly, especially given that the state supreme court recently announced that it will have to use remote hearings to deal with the increased volume of cases when it goes into effect. This new process will also require enough lawyers to represent all of the people going through these hearings. Some counties, Grace said, are under-resourced, but her office, which covers Chicago, created a new division and increased staffing to handle the hearings. “We’re ready,” she said.

The law also limits who will have to go through these hearings. The Pretrial Fairness Act requires that people charged with offenses other than felonies or Class A misdemeanors not be arrested and taken into custody at all, but instead given citations on the spot. It also specifies that people accused of misdemeanors and the lowest level of felonies can be arrested but should then be released from police stations with a court date. Grace said that will mostly apply to offenses like driving on a suspended license, retail theft, and drug possession. Only the moderate or more serious classes of crimes, including domestic violence misdemeanors like simple domestic battery or violations of protective orders, will go through the hearing process where the state can seek detention.

People currently in jail because they haven’t been able to pay a money bond handed down by a judge, meanwhile, will have the option to request a rehearing where they can ask a judge to, under the new law, release them without conditions. At that point the state can file a petition seeking their detention, but it will go through the same hearing process. It’s impossible to know how many will choose to request a rehearing, but “many” of the people in Illinois jails “will be entitled to release because they’re not in there for serious cases,” Grace said—they’re there because they can’t afford to pay bail. 

In addition to fielding a team of court watchers to observe these hearings, advocates are also preparing for the law by raising awareness for people currently in jail who will be entitled to a rehearing starting next week. The Cook County Public Defender’s office recently held a training for all of its attorneys and staff going through the options for people with pending cases. The Illinois Network for Pretrial Justice has designed and printed know your rights guides the size of a business card with information about the new law and, crucially, the new rights people will have when they go through the system. Advocates are planning to distribute the guides to people most likely to be arrested, getting them out at legal aid offices, mental health providers, and harm reduction clinics. “We’re trying to get those in front of as many people as possible,” McLoughlin said, so “people are getting their full rights under the law.” They’re also lobbying for government agencies to send information to people in jail directly. 

It recently became clear that advocates have their work cut out for them after the Illinois Office of Statewide Pretrial Services launched an electronic monitoring program in 70 counties on Aug. 20 as part of its preparations for the Pretrial Fairness Act, despite the law stating that such monitoring should be a measure of last resort. “There is no reason for Illinois to expand its use of electronic monitoring in response to ending money bond,” the Illinois Network for Pretrial Justice said in a statement responding to the ramp-up in electronic monitoring programs. 

Electronic monitoring “defeats the purpose of being released,” Payton told Bolts. “It’s another form of incarceration.”

Through court watching, if advocates see that judges are veering from the purpose of the law by penalizing people who should simply be released, they can raise the alarm with the courts themselves and other people who are responsible for implementation. Community members can protest. Civil rights attorneys can bring litigation. Judges, many of whom are elected, may feel pressure from being watched. Such efforts have been successful before. In 2016, after two people held in the Cook County jail brought a lawsuit challenging the cash bail system for discriminating against poor people, the county’s chief judge instructed judges in July 2017 not to set money bonds that defendants couldn’t afford to pay. But the order had virtually no enforcement mechanism. 

“Right off the jump we knew we needed to be watching the courts like hawks,” McLoughlin said. With the help of roughly 100 people trained to watch courts, his organization exposed several judges who weren’t following the order. 

Court watching will also allow advocates the opportunity to gather insights and data on what happens in courtrooms after the reforms as a way to push back on misinformation and any campaigns to roll them back. Opponents of the Illinois reform, including state Republicans and law enforcement unions, have raised fears that ending cash bail will increase crime, and they unsuccessfully campaigned on the issue during the 2022 midterms. Their efforts, filled with incorrect information, got media outlets to run with the nickname “Purge Law,” after the movie franchise about a 12-hour period when all crime is legal, even using screenshots from the movie in stories. 

A similar reaction greeted passage of a reform in New York in 2019, which barred judges from setting cash bail for most misdemeanors and nonviolent felonies. Studies of New York released this year found that the state’s bail reform, which the GOP and some Democrats have severely criticized, did not increase crime.

People who court watch in Illinois can report back to their neighbors and communities about what really happens after the law goes into effect. Activists also are planning on  canvassing to get the word out about what the law actually does. In late August, they hit local farmers markets to hand out fact sheets and talk to people. They also plan to go door to door, hoping to speak to thousands of people directly. 

All of that organizing could become important very quickly. The Illinois legislature reconvenes in October and November for a veto session, and McLoughlin expects “some half-baked proposals” to roll the law back. He expects to have to defend the law in future legislative and budget sessions as advocates have had to do in New York, where bail reforms have been rolled back twice since 2019. “I think we’re going to be juggling implementation and defense for the foreseeable future,” McLoughlin said. 

“We are under no illusions that our biggest fight is behind us,” Payton agreed. “We know that our biggest fight is ahead of us.”

The post Court Watchers Prepare For the End of Cash Bail in Illinois appeared first on Bolts.

On June 25, 2019, in a nightclub in Woodside, Queens, public defender Tiffany Cabán claimed election night victory as the borough’s newest District Attorney. Backed by Alexandria Ocasio-Cortez, Cabán—a queer Latina woman from Richmond Hill, Queens, who ran on ending mass incarceration and the war on drugs—beamed as the crowd shouted “DSA!” In theory, it was a left-wing victory: Cabán had run among a slate of seven candidates, including Queens Borough President Melinda Katz, and won. But just days later, outstanding provisional and absentee ballots changed the picture. After the final tally, Katz, a moderate and the Democratic party’s favored choice, led by a mere 60 votes. Cabán conceded.

Almost exactly four years later, on June 27, Katz will try to keep her office. This time, her leading opponent in the Democratic primary is a candidate who is nothing like Cabán. Katz faces George Grasso, a former NYPD cop and an administrative judge for criminal matters for Queens Supreme Court who decided to leave the bench more than two years early because he “could no longer keep [his] mouth shut” about the state of the city’s public safety, he told Mother Jones and Bolts. 

The shift in debate in this primary race is the latest example of a broader transformation in the politics of crime and public safety in New York. Instead of a challenge from a leftist like Cabán, the insurgent candidate is Grasso: a man who gleefully calls himself the “anti-Krasner,” a reference to Philadelphia’s progressive district attorney. Grasso is openly advocating for a return to law-and-order approach to policing.

His entrance into a Democratic primary is indicative of a move to the right foreshadowed by New York’s Democratic leaders. Mayor Eric Adams and Governor Kathy Hochul have touted tough-on-crime policies, doubling down on critiques of bail reform, and moving away from decarceral solutions. The contours of the Queen’s race is part of a larger national narrative, according to experts: In Democratic cities, like San Francisco and Boston, tough-on-crime rhetoric has become a norm again. Data-driven critiques, and reevaluations of criminal justice policy, have less sway—some Democrats, instead, want to return to the politics of law-and-order.

Grasso started out as a “foot cop” in southeast Queens in 1979. He rose to first deputy police commissioner of the NYPD, a position he held for almost a decade, before, most recently, taking the bench as an administrative judge in the Queens Supreme Court. Often, Grasso mentions his tenure with former New York City police commissioner Bill Bratton, who has endorsed him, as core to his beliefs about policing. He says his priority is to return the DA’s office to the quality-of-life enforcement Bratton embraced—criminalizing lesser offenses such as defacing property and fare evasion that “create conditions conducive to” increased crime and violence. (Grasso was part of the Giuliani-era team that designed the first quality of life strategy for Commissioner Bratton.)

In conversation with Mother Jones and Bolts, Grasso mentions specifically taking on fare evasion. The Friday following the death of Jordan Neely—an unhoused Black New Yorker who was choked to death by another passenger on a subway train car—Grasso took to Twitter, not to express outrage at Neely’s public killing, but to criticize the NYPD for ending warrant checks for violating transit laws, a policy that ended due to overwhelmingly targeting houseless New Yorkers. “WHAT!!!! This is the misguided policy that led directly to Mr. Neely’s death and Mr. Penny’s arrest!” he wrote.

Grasso told Mother Jones and Bolts that if the law had been enforced properly, Neely would have likely have ended up back on Rikers Island. “Maybe they would’ve hooked him up with some kind of mental healthcare or something,” he said. “We know one thing for sure, he would be alive today.” (This year, three people have died at Rikers. Last year was the deadliest in a quarter century, Gothamist reported, with 19 deaths at the jail; six are reported to have been suicides.)

While Grasso extols broken windows policing, he says he wants to prioritize mental health as DA, creating the office’s first mental health bureau and turning Rikers Island into a Bellevue Hospital satellite to treat the majority of the incarcerated population at Rikers who struggle with mental illness. During his judicial tenure Grasso championed alternatives to incarceration, creating diversion programs for teens in partnership with the Center for Court Innovation.

“I really hate the fact that people say, ‘Oh, Grasso’s coming in from the right.’ I’m telling you, I do not consider myself right-wing in any way, shape, or form,” he said. “MAGA makes me wanna throw up.”

Despite that, Grasso has created an independent “Public Safety” party line on the General Election ballot in November to ensure all Queens voters, including Republicans, can vote for him. He’s spoken at both Central Queens and Queens Village Republican clubs in the past few months. He says it was because requests to speak at Queens Democratic clubs were denied.

Grasso’s rhetoric is a “caricature of a Republican throwback,” according to Anthony C. Thompson, a professor of clinical law emeritus of law at New York University and founder of the faculty’s Center on Race, Inequality and the Law. “If we look at history, Katz tacked to the left rhetorically to respond to her opponent [in 2019], so it is a legitimate question to say, ‘Will she tack to the right to respond to Grasso?”

The incumbent Katz is once again backed by the New York Democratic Party stalwarts. She has received $12,500 in donations from Jay Jacobs since 2022, the head of the New York State Democratic Party, and has been endorsed by state officials including U.S. Senator Chuck Schumer and Congresswoman Nydia Velázquez. She has led a fairly moderate reelection campaign focused on straddling the line—attempting to triangulate between reform and harsher crackdowns on crime. Katz has defended her record of getting guns off the street and curtailing retail theft, while also making structural changes to the criminal legal system called for by some progressives.

In May, Katz shared her campaign ad, and tweeted that it is “appropriately titled, ‘Promise’”—a reference to pledges she made to voters when she took office in 2020. Katz has fulfilled some of them. She notably created a wrongful conviction unit and a hate crimes bureau within the DA’s office. 

But Katz has been shaky on other reforms. In her 2019 campaign, Katz vowed not to prosecute low-level marijuana charges. In 2021, she did dismiss thousands of marijuana-related offenses, but this April her office began cracking down on unlicensed cannabis vendors. On sex-work cases, Katz said she would work to implement the controversial Nordic model which prosecutes clients and sex traffickers, not sex workers, but according to Documented, Queens still maintains the highest rates of prosecution for prostitution arrests in the city.

Katz has maintained a conventional approach to office that follows that of a politician responding to pressure rather than a prosecutor committed to fixing problems, according to Thompson. He points out her decision to start a conviction integrity unit, for example. “She didn’t say, ‘When we reversed 99 cases because of conviction integrity problems, we then looked at the prosecutors who tried those cases and had them engage in training or fire them,’” Thompson says. “It’s been very much a political response. It sounds like what a state assembly person would respond, not what a thoughtful district attorney who’s trying to change her office would respond.”

Most notably, Katz has waffled in her views on bail reform. At the start of her last campaign, in December 2018, she said she would no longer seek cash bail for misdemeanors and advocate for broader state legislation that would do the same. Six months later in a June candidate debate, Katz said, “under my administration, there will be no cash bail.” Then, one week after taking office in 2020, an assistant district attorney in Katz’s office set bail for a man charged with stealing a cellphone at $50,000, breaking her initial reform pledge. (When NY1’s Erroll Louis questioned Katz about reneging, she said she believed cash bail was unfair “deep in [her] heart” but that Queens was not ready to eliminate it.)

Bail reform has stood in for broader discussions about crime in New York in the past three years since it went into effect. Adams and Hochul have both pointed to the 2019 bail reform law—which sought to end cash bail for a wide array of misdemeanors and non-violent felonies to prevent jail time for low-income defendants—as a reason for spiking crime.

This spring, New York’s state legislature, with Hochul’s blessing, passed a budget that rolled back some of the most significant reforms of the 2019 bail law. The changes eliminated the provision that judges needed to use the “least restrictive” means to ensure defendants return to court. Now, judges are allowed to set any conditions they deem necessary—including setting cash bail, which, advocates have warned, will lead to more pretrial incarceration. 

Both Grasso and Katz have supported this rollback, and in fact have each argued for a further revision to bail reform, to include a “dangerousness standard” that would allow judges to consider defendants’ past conviction or other more nebulous factors in order to detain them pretrial. Hochul has argued against implementing dangerousness calling it “subjective” and “determined by the color of [defendants’] skin and perception of dangerousness,” but critics have said her new revision is equally as arbitrary and biased. (It ultimately was not included in the budget that passed.) 

On May 5, Katz joined Adams and Hochul at an event to sign the controversial bail reform changes into law. Katz called it a “welcome amendment” in a statement. But Grasso believes it doesn’t go far enough. He has said the fact of Katz’s attendance at the event proves she isn’t “serious” about setting a true dangerousness standard for defendants. 

Queens had the second largest number of arrests for misdemeanors, according to recent data from New York City’s Criminal Justice Agency, among the five boroughs. More than 17,000 people were arrested in Queens on low-level offenses, many of whom, if unable to post bail, could end up in Rikers for months at a time.

While the 2019 race moved the frame of what the new DA could do in office and how she could use her discretion wisely for safety and justice, Katz is hardly seen as a reformer, says Insha Rahman, the vice president for advocacy and partnerships for the Vera Institute of Justice. “Some of her policies are indeed reform oriented,” Rahman says. “[But] Katz has in general been less reform minded in her first term in office, than say, certainly Eric Gonzalez in Brooklyn, or Alvin Bragg in Manhattan.”

In other U.S. cities, Rahman says, there’s more appetite among voters for solutions to crime that don’t resort to failed models of justice. Just last month, in Allegheny County, Pennsylvania, home to Pittsburgh, voters elected public defender Matt Dugan over the incumbent Steve Zappala in the Democratic primary. But in DA races across New York state there are far fewer self-professed reformers on the ballot than four years ago. In the Bronx, defense attorney Tess Cohen is challenging incumbent Darcel Clark on a progressive platform, but in Queens, progressives have largely haven’t weighed in on the contest between Katz and Grasso. (Cabán did not respond to a request for an interview.)

One exception has been progressive city councilmember Shekar Krishnan, who publicly supported Tiffany Cabán in 2019. He wrote that he has not “always seen eye to eye” with Katz, but still commended her for her efforts in a June QNS editorial where he endorsed her run against “dubious opponents.” 

As with most off-year elections, turnout will determine the outcome. In the 2019 primaries, only 11.9 percent of Queens voters showed up to the polls. It is the immigrant borough, with 46 percent of residents who were born outside of the country. 

One difficulty in projecting the results could be the presence on the ballot of Devian Daniels, a former public defender, who entered the race in mid-April. While Daniels is running to reform the office with a focus on decriminalizing poverty and ending mass incarceration, she does not have an active campaign, with any contributions or endorsements on record—with the exception of submitting signatures for ballot placement. Her candidacy was not approved by the New York City Bar Association. Daniels has also been tied to Hiram Monserrate, the former New York legislator convicted of federal corruption charges for stealing city council funds and for assaulting his girlfriend. (Daniels did not respond in time for requests for comment.)

Still, Katz is expected to prevail. Neither Rahman nor Thompson believe Grasso will win the primary. Yet both worry about how progressives might hold Katz’ office accountable.

“I think the danger is that Katz will misinterpret a victory as a signal that she doesn’t need to do anything differently, ” Thompson tells Mother Jones and Bolts. “The great challenge around people who really wanna see true racial equity in the criminal legal system and true reform is: How do we continue to keep elected officials’ feet to the fire?”

The post Melinda Katz Once Faced Off Against DSA. Now It’s New York’s Police Lobby. appeared first on Bolts.

Ryan says he was there to monitor the police behavior toward protesters, standing removed from the gathering. “I said, ‘Okay, I’ll go watch,’ because police have a tendency to overreach to these little things,” he recounts. “I don’t think I should have been arrested. But I was.” The police initially accused him of resisting arrest but they later admitted that this characterization was incorrect and apologized; still, they maintained trespassing charges.

A few weeks later, Ryan announced his candidacy for Broome County district attorney. He says he’d bring into the office a more skeptical perspective toward the criminal legal system, born of his experience as a defense attorney and public defender. “We all know that they police certain communities and treat certain communities differently,” he told Bolts. “If you’re not in a position of power to change it, then it’s not going to change.” 

He added, “The only one who is a gatekeeper to make sure that horrible jobs aren’t done is the district attorney because he or she has the ultimate discretion on whether to prosecute and how to prosecute, and what justice to extract from each individual situation.”

Broome County’s DA race is among dozens this year that will decide who leads local prosecution and law enforcement in New York. Fifteen counties are electing their sheriffs and 24 their DA, and the filing deadline for candidates to run for a party’s nomination passed last month. 

Most counties drew just one candidate who’ll be facing no competition. They include conservative sheriffs who have resisted gun control, the high-profile DAs of Rochester and Staten Island, and a sheriff who defied calls to resign for sharing a racist social media post—and is now poised to stay in office for four more years. 

Still, a few flashpoints have emerged. Candidates are taking contrasting approaches on bail in Broome, discovery reform in the Bronx, and policing in Queens. Rensselaer County (Troy) faces another reckoning with its unusual decision to partner with federal immigration authorities.

Bolts has compiled a full list of candidates running in the June 27 primaries, which will decide the nominees of the four political parties that have ballot lines in New York State: the Democratic, Republican, Working Families, and Conservative parties. Candidates can still petition until late May to appear on the Nov. 7 ballot as an independent.

These elections are unfolding against the backdrop of reforms the state adopted in 2019 to detain fewer people pretrial and offer defendants more access to the evidence against them. Democrats earlier this month agreed to roll back those reforms after years of pressure by many DAs and sheriffs. Their new package, championed by Governor Kathy Hochul, gives judges’ more authority to impose bail, amid other provisions that will likely increase pretrial detention. Hochul also backed a push by New York City DAs to loosen discovery rules requiring that prosecutors quickly share evidence with the defense, but the final legislation did not touch those.

Tess Cohen, a defense attorney and former prosecutor who is running for DA in the Bronx, is one of a few candidates this year who is voicing support for the original pretrial reforms and distaste for the rollbacks. Cohen is running in the Democratic primary against Bronx DA Darcel Clark, who was reported by City & State to be the chief instigator in lobbying state politicians to  loosen discovery rules. (Clark and other city DAs flipped on their push in the final days.) Cohen faults state politicians for making policy based on the media blowing up specific instances of crime.

“The problem with people like the governor bowing down to press coverage that is sensationalist and fear-mongering, and almost always inaccurate, is that we actually make our communities less safe when we do that,” Cohen told Bolts. “We have very good data that shows that holding people at Rikers Island on bail or low level crimes does not make us safer.” 

A study released in March by the John Jay College found that people who were released due to the bail reform were less likely to be rearrested. 

Eli Northrup, a staunch proponent of the original reforms as policy director at the Bronx Defenders, hopes that the upcoming elections usher in more local officials who are “looking to change the system, shrink the system, work toward having fewer people incarcerated, rather than using it as a tool for coercing pleas.”  But he is also circumspect after the new rollbacks. Even if a reformer were to win an office, he says, they’d likely have to contend with police unions, mayors, and other entrenched powers looking to block reforms. “What we should be doing is spending less money on policing and prosecution and investing that very money into the communities that are harmed the most by violence,” he says.

To kick off Bolts’ coverage of New York’s criminal justice elections this year, here are five storylines that jump out since the filing deadline has passed.

1. Challenges from opposite directions for two New York City DAs 

Queens four years ago saw a tense Democratic primary for DA between Tiffany Cabán, a public defender who ran as a decarceral candidate, and Queens Borough President Melinda Katz, who prevailed by just 60 votes. Four years later, Katz faces a primary challenge from her right from George Grasso, a retired judge and former NYPD official, who is calling for harsher policing and thinks the city is waging a “war on cops.” Grasso is running with the support of Bill Bratton, the former NYPD commissioner and a frequent critic of policing reforms. 

Public defender Devian Daniels is running as well, saying she wants to fight mass incarceration from the Queens DA’s office after “years of witnessing abuses on the front lines as defense counsel.” The Democratic primary typically amounts to victory in this blue stronghold. 

In the Bronx, Darcel Clark’s sole primary challenger, Tess Cohen, says wants to take the DA’s office in a more progressive direction. She says that Clark’s lobbying to loosen the state’s discovery rules is emblematic of how prosecutors can coerce defendants into guilty pleas. “If you’re held in Rikers, and you can only get out if you plead guilty, and you can’t make that argument that you’re actually innocent because you don’t have the evidence, then you end up pleading guilty just to get out of Rikers,” she told Bolts. 

Cohen explained that she would also change how the office decides whether to recommend for pretrial detainment. “If we are in a space where our recommendation for sentence or our plea offer means the person is immediately going to be released from jail, they should be released anyways,” she said. “You should not be holding someone in jail that you plan to release the minute they plead guilty.” 

Clark did not reply to a request for comment.

2. North of New York City, the policy contrasts on pretrial reform are muted

Broome County, on the border with Pennsylvania, had the highest rate of people detained in jail as of 2020, the year the reforms were first implemented, according to data compiled by the Vera Institute for Justice. Ryan, the Democratic lawyer running for DA, told Bolts he supports the reforms, crediting them for helping slightly reduce the local jail population. 

But his two Republican opponents in this swing county disagree. Incumbent Michael Korchak has pushed for their repeal for years, while his primary rival Paul Battisti, a defense attorney, says the reforms were “extreme.” Neither Battisti nor Korchak replied to requests for comment. Their rhetoric is in line with the position of many, but not all, upstate DAs who have lobbied to roll back the pretrial reforms ever since they passed in 2019. 

But candidates have tended to converge on pretrial policy in the other DA races north of New York City. There are three such counties besides Broome with more than 100,000 residents. 

In Ulster County, Democrat Manny Nneji, who is currently the chief assistant prosecutor, faces Michael Kavanagh, who used to have the same job and now works as a defense attorney, and is running as a Republican. In interviews with Hudson Valley One earlier this year, both candidates largely agreed that the 2019 bail reform should be made more restrictive, and jostled about who is tougher on crime.

In Onondaga County, home to Syracuse, Incumbent William Fitzpatrick is running for re-election as a Republican against Chuck Keller, who filed to run for the Democratic nomination but also that of the Conservative Party, an established party in the state. (New York law allows candidates to run for multiple nominations at once.) The Syracuse Post-Standard reports that the local Conservative Party in March chose to endorse Keller over Kitzpatrick after Keller shared with them that he supports bail reform roll backs in line with what lawmakers ended up passing in early May. (Christine Varga is also running in the Conservative Party primary.)

In Dutchess County, Republican William Grady is retiring this year after 40 years as DA, a tenure during which he strongly fought statewide reform proposals. Democrat Anthony Parisi and Republican Matthew Weishaupt, who have both worked as prosecutors under Grady, are running to replace him; after he entered the race, Parisi faced a threat of retribution from Grady, for which the DA later apologized. Weishaupt has said he thinks the discovery reforms are “dangerous” in how they help defendants. Parisi did not reply to questions on his views on the reforms.

Six smaller counties—Columbia, Delaware, Hamilton, Lewis, Seneca, and Sullivan, with populations ranging from 5,000 to 80,000 residents—also host contested DA races this year. 

3. Half of this year’s DA elections are uncontested

A single candidate is running unopposed in 12 of New York’s DA races. Ten of them are already in office, but two are newcomers: Todd Carville ​​in Oneida County and Anthony DiMartino in Oswego County. Both are Republicans and currently work as assistant prosecutors.

Michael McMahon, Staten Island’s DA, is running unopposed for the second consecutive cycle: He is a Democrat in a red-leaning county, but the GOP did not put up a candidate against him. He has been very critical of the criminal justice reforms adopted by his party’s lawmakers, and has pushed for their rollback. Another prominent critic of the pretrial reforms, Monroe County (Rochester) DA Sandra Doorley, is also running unopposed. Doorley, a Republican who was the president of the state’s DA association back when the reforms were first implemented in 2020, faced a heated challenge four years ago but is now on a golden path toward a fourth term.

4. Will ICE’s 287(g) program retain a foothold in New York?

Rensselaer County, home to Troy, is the only county in New York State that participates in ICE’s 287(g) program, which deputizes local law enforcement to act like federal immigration agents in county jails—and one of the only blue-leaning counties in the nation with such an agreement. Immigrants’ rights activists from Cape Cod to suburban Atlanta have targeted 287(g) by getting involved in sheriff’s elections in recent years, tipping these offices toward candidates who pledged to terminate their offices’ partnerships with ICE.

Patrick Russo, the Republican sheriff who joined 287(g), is retiring this year. The race to replace him will decide whether ICE’s program retains its sole foothold in New York.

But will anyone even make the case for breaking ties with ICE? The two Republicans who are running for Russo’s office, Kyle Bourgault and Jason Stocklas, each told Bolts that they would maintain their county in the program with no hesitation. 

The only Democratic candidate, Brian Owens, did not return repeated requests for comment. He said at a press conference last month that he had no position on the matter. “I’d want to educate myself a little more before I’d make any decision on that,” he said. Owens is a former police chief of Troy, a city that during his tenure saw local activism pressuring officials to not collaborate with ICE, so these are not new questions. Still, Russo coasted to re-election unopposed four years ago, and it remains to be seen whether the 2023 cycle gives immigrants’ rights activists any more of an opening. 

5. Most incumbent sheriffs are virtually certain of securing new terms

Albany Sheriff Craig Apple drew national attention in 2021 for filing a criminal complaint against then-Governor Andrew Cuomo for groping, but he also attracted criticism for fumbling the case. The New York Times reported at the time that Apple seemed to be made of Teflon, having rebounded from past controversies with multiple re-election bids where he faced no opponent. History repeated itself again—he drew no challenger this year. 

But judging by the lay of the land throughout the state, this says less about Apple than it does about a broader dearth of engagement in New York’s local elections: Overall, 80 percent of the state’s sheriff races are uncontested this year. 

This includes the sheriffs of Fulton and Greene County, who have fiercely opposed a new gun law banning concealed weapons in a long list of public spaces, alongside many peers who are not up for election this year. Fulton’s Richard Giardino took to Fox News to signal he’d only loosely enforce it. 

And it includes Rockland County Sheriff Louie Falco, who faced calls for his resignation in 2020 after he shared a link from a white supremacist website about Black people on Facebook. Three years later, he won’t even face any opponent as he coasts to a fourth term.

The post Tensions High on Bail and Policing as New Yorkers Elect DAs and Sheriffs appeared first on Bolts.

Illinois was supposed to make history at the start of this year: with the full implementation of the Safety, Accountability, Fairness and Equity-Today Act, or SAFE-T Act, passed by the legislature in 2021, it would have been the first state to completely get rid of the use of cash bail. 

Instead, the part of the law eliminating cash bail, known as the Pretrial Fairness Act, is on hold after a Kankakee County judge ruled in favor of 58 state’s attorneys and sheriffs who sued Illinois to stop it from going into effect, and on December 31 the state’s supreme court stayed its effective date until it can weigh in. In striking the provision down, the circuit court judge, Judge Thomas W. Cunnington, deployed a novel argument: that the legislature’s effort to reform bail practices violated the separation of powers between the legislature and the courts enshrined in Illinois’s state constitution.

“Legislative enactments undermining the ‘traditional and inherent’ powers of the judicial branch, particularly, those restricting judicial discretion, violate the Separation of Powers Clause,” he wrote. The court has “independent, inherent authority to deny or revoke bail.”

Sarah Staudt, director of policy at Chicago Appleseed, an organization that advocates for court reform in Illinois, said Cunnington’s argument would set a dangerous precedent if the state supreme court allows it to stand. It would indicate, she warns, that courts “have authority, despite the legislature, to do whatever they want,” essentially walling them and their procedures off from the reach of the people democratically elected by voters. 

“It’s a pretty anti-democratic idea,” she added. 

The Illinois supreme court agreed to hear an appeal and will hold oral arguments no earlier than March, though no date has been set. Briefs were filed from both sides in late January.

In a brief he filed in defense of the law,  Illinois Attorney General Kwame Raoul agrees that Cunnington’s ruling misreads the separation of powers. Raoul, a Democrat who just won re-election in November against a Republican challenger who ran on repealing the Pretrial Fairness Act, quotes past decisions to write that “’[t]he legislature may enact laws involving judicial practice’ without violating separation-of-powers principles as long as those laws ‘do not infringe unduly upon the judiciary’s inherent powers.’” He adds that the act’s provisions “merely regulate the courts’ exercise of an inherent judicial authority, namely the authority to detain defendants pending trial, and do not unduly infringe upon it.”

In making his argument, Cunnington referenced one case in New York City after cash bail was eliminated there for many lower-level offenses. Cunnington says this is the only trial court to rule on whether eliminating cash bail conflicts with a separation of powers and which found that the reform “wrest[s] from courts… final discretion” in setting conditions of pretrial detainment. But it’s “a big departure,” said Kate Schwartz, a partner at Hughes Socol Piers Resnick & Dym, Ltd., a law firm that is part of an amicus brief to the supreme court in favor of the Pretrial Fairness Act, to go from that New York ruling to arguing that “the legislature can’t impose any rules or requirements [on] the overall system.” That, she said, is a brand new cudgel against bail reform and efforts to revamp the court system.

If the state supreme court sides with Cunnington’s interpretation, critics say, it may have broad ramifications in Illinois and elsewhere. “It would suggest that courts are able to have a really broad range of discretion,” said Staudt. It wouldn’t just give them absolute authority over individual cases, but also over the parameters within which they are supposed to make those individual decisions. 

“That is something that is a legislative function, not a judicial function,” Staudt said, warning that, taking Cunnington’s decision to its logical conclusion, the legislature may no longer be able to weigh in on a range of issues that are usually seen as matters for policymakers and lawmakers to decide. 

Pilar Weiss, director of Community Justice Exchange, a national organization that works to end cash bail, agrees that the doctrine would leave judges with little oversight. “The whole thing about separation of powers is the judges can’t make their own rules,” she said. “You have to have another body…to help make and enforce the rules.”

She also shared a concern that, if the supreme court upheld Cunnington’s ruling, the effects may ricochet in other states where lawmakers are open to changing bail practices. 

“There might be a state in which a state legislature was considering pretrial reform and now feel that they can’t,” she said. 

Critics of Cunnington’s decision point to a myriad of ways that Illinois lawmakers already get to shape the court systems. “The legislature and the judiciary have always shared power when it comes to making decisions about criminal cases,” Staudt said. 

For instance, Illinois has a statute on the books allowing parties in a case to call for the substitution of a judge with a new one, one time per case, without needing to provide evidence of the need for a new judge. “If the legislature can tell a judge the party has the right to get rid of you altogether,” said Matt Piers, president of Hughes Socol Piers, the legislature has “a pretty powerful authority to tell judges what they can and can’t do.” 

Lawmakers in Illinois and elsewhere also impose mandatory sentences on their court systems or, on the other hand, sentencing limitations. “Legislatures all over the country, including the one we’re talking about the Illinois legislature, pass laws that limit what judges can do in criminal cases and other cases,” Piers said. It’s “paradigmatic.” 

Cunnington’s argument relies in large part on the idea that courts have the authority to keep the public safe and ensure that those charged with crimes return to court after their arrests. But the SAFE-T Act still allows judges to set plenty of other conditions on someone’s release: travel restrictions, drug testing, electronic monitoring, home confinement, restraining orders. Research has found that cash bail, on the other hand, does not increase people’s return to court for later hearings or enhance public safety. “The judges have a tremendous authority left to them,” Piers said. “The one thing they can’t do is use a condition that has proven to be an abysmal failure.”

Cunnington’s case also relies on the idea that the Illinois constitution enshrines bail as part of the criminal legal system, and that lawmakers cannot restrict that. But Piers points out that, while the Illinois state constitution states, “All persons shall be bailable by sufficient sureties,” that doesn’t mean money has to be involved. Bailable means “with appropriate conditions everybody has a right to be released pretrial because you are presumed innocent,” he said. “Bond is just a written promise to do something.” 

State Republicans, who have fought the SAFE-T Act, applauded Cunnington’s ruling and seemed to side with the judge’s reasoning. Senate Minority Leader Dan McConchie called the law “sloppy, rushed, [and] poorly drafted,” and a threat to public safety. “And on top of this, the central component has now been ruled unconstitutional.”

Staudt stressed that there was an effort to oust lawmakers who decided to get rid of cash bail, but Democrats retained a comfortable majority in the legislature in November. In fact, they expanded their majority in the state House. 

Democrats also have a 5-2 majority on the state supreme court because they swept the two supreme court elections held in the state in November. 

For Staudt, the court’s upcoming decision on Cunnington’s separation of powers doctrine will test who gets to decide the basic parameters of the court system in Illinois.

“I certainly worry about the outcome of this,” Staudt said. “We have to allow democratically elected legislators…to respond to their constituents and pass laws that reform our really broken criminal legal system.”

The post With Illinois Cash Bail Case, Courts May Wall Themselves Off from Reform appeared first on Bolts.

In 2018, Kahan joined Crime Stoppers of Houston, a nonprofit organization that since 1980 has sponsored an anonymous tip line that paid out rewards of up to $5,000 for information that helped solve cases. Soon after Kahan joined, Crime Stoppers took a more aggressive stance and began targeting a new crop of Democratic, reform-minded judges, eventually blaming them for a 2020 spike in murders that was seen across the country. Kahan even started co-hosting a regular segment with the local Fox affiliate called “Breaking Bond” to shame and blame individual judges for crimes committed by defendants out on bail. 

Kahan may soon gain more power to go after Texas judges. Governor Greg Abbott nominated him last month as a “citizen member” to the state’s commission on judicial conduct, an oversight body that hears complaints about local judges and whose recommendations can lead to sanctions or even suspension. 

Kahan acknowledged that his nomination might be controversial in a social media post celebrating the news last month, writing, “I get that ‘some naysayers’ are none too happy about this but I’ve always adhered to the philosophy that when you advocate on behalf of one faction, you generally infuriate the other faction.” 

Some Houston lawyers questioned whether Kahan could fairly field complaints against judges given his track record of going after them. 

“If you’re in my shoes and you’ve watched this guy sit here and unfairly scapegoat judges for following the law for the past few years, and all of a sudden you’re moving him to a position where he could literally have the ability to influence whether or not good and fair judges keep being judges, that becomes terrifying,” said Murray Newman, the incoming president of the Harris County Criminal Lawyers Association. 

Asked by Bolts whether he would bow out of cases that involve judges that he has campaigned against or criticized, Kahan said the commission has a recusal process that he will abide by “if a conflict of interest is determined on a case by case scenario.”

Kahan’s nomination, which is subject to confirmation by the GOP-run state Senate, highlights an increasingly harsh approach to the criminal legal system under Abbott. The governor and other state Republicans have dialed up crackdowns on local officials who have proposed reforms like detaining fewer people in jail pretrial or reducing the scale of prosecutions. In 2021, the governor successfully pushed the Texas legislature to pass a law setting limits on judges’ ability to reduce bail. This year, after years of attacking local Democratic prosecutors’ decisions to downplay charges for certain low-level offenses, Republicans have introduced legislation to circumvent or preempt the authority of local DAs. 

Abbott is also likely to push for new bail legislation as state lawmakers convene this month; Kahan, who supported Abbott’s bail bill last session, has joined police and prosecutors in urging lawmakers to initiate a process to amend the state’s constitution to allow judges to deny bail in more cases, which Abbott prioritized last legislative session. 

Krishnaveni Gundu, co-founder and executive director of the Texas Jail Project, which monitors conditions in local jails and advocates for better conditions, said Kahan’s nomination captures Abbott’s punitive approach to pretrial policy. “It’s clear that the governor has no interest in meaningful bail reform,” Gundu told Bolts. “Meanwhile people with mental illness and disabilities are dying in overcrowded jails while being detained pretrial.”  

Kahan has become a celebrity of sorts among Texas Republicans and other tough-on-crime politicians for helping fuel the backlash to landmark bail reforms that Harris County judges implemented in recent years to reduce the number of poor people stuck in jail on low-level charges. A Democratic sweep in the 2018 midterms shook up the Harris County judiciary and added some judges who sided with civil rights organizations that were suing the county over its bail system. Those new judges agreed to settle the lawsuit and implement changes to reduce the number of people in jail over a misdemeanor charge, as well as pushing for other reforms like no longer jailing defendants for being late to court or testing positive for marijuana. 

While Kahan has in the past voiced support for those changes, on TV he often insinuates that those reforms have led to more crime—despite years of reports and studies showing Harris County’s misdemeanor bail reforms have improved public safety. 

“If we sit back in silence, we’re just as guilty as those who are actually promoting this type of criminal justice reform or collateral damage that we’re seeing from this,” Kahan said in a video that Crime Stoppers posted to Facebook last year responding to criticism that the organization had become too active in judicial elections.

While barred from participating in political campaigns, the nonprofit Kahan works for depends on financial support from politicians like Abbott. An investigation last year by the Marshall Project and the New York Times showed that Crime Stoppers of Houston, the largest nonprofit of its kind in the country, has received millions of dollars in grants from Abbott’s office, which helped it weather financial stress in recent years. The investigation also revealed that the changes implemented by many of the Democratic judges that Crime Stoppers and Kahan have publicly criticized have hurt the organization’s bottom line; some local judges are no longer making defendants pay a $50 fee that had once contributed to a large part of its budget. (It’s common around the country for courts to require defendants to pay fees to private organizations.) 

Harris County District Attorney Kim Ogg, a conservative Democrat who ran Crime Stoppers of Houston about a decade before Kahan joined and gave the group $500,000 in 2021, has not faced criticism by the organization or Kahan, even though some local lawyers blame her office for not making more formal requests to increase bonds. Ogg, like Crime Stoppers, has targeted judges who supported reforms in Harris County, and her office has filed complaints to the state judicial commission to which Kahan was just appointed.

Throughout 2020, Ogg’s top lieutenant, first assistant DA David Mitcham, filed several reports with the commission against Franklin Bynum, a former public defender and reform-minded judge elected to the bench in 2018 who has frequently clashed with Ogg. Mitcham complained that Bynum had released too many defendants, reduced too many sentences, and displayed “an unprofessional and irredeemable bias against the State of Texas and its prosecutors.” Elements of the complaints were personal and inflammatory: “His erratic behavior and demeanor have deteriorated to such an extent that he may be suffering from some sort of mental impairment of undetermined cause,” Mitcham wrote to the commission on Sept. 25, 2020. 

Ogg’s office attached to its complaint a photo of Bynum wearing a “Defund Chicago Police” T-shirt, which the Houston police union shared on social media. The judicial commission held a hearing about the complaints last April, a month after Bynum had already lost his primary election to a prosecutor in Ogg’s office. At the time, six of the commission’s 13 members were judges appointed by the all-Republican Texas Supreme Court, five were non-attorney “citizen members” appointed by Abbott, the Republican governor, and two were lawyers appointed by the state bar.

Members of the judicial commission lingered on the photo of Bynum in the “defund” shirt. “Violence in general has increased in the cities because the police have been maligned and degraded and disparaged, and violence against them has increased,” Janis Holt, an Abbott appointee and vice chair of the commission, told Bynum before saying her son is a cop. “When I see someone who wears ‘defund the police,’ it tells me that you don’t care about my son and his family and my granddaughter.” 

The judicial commission recommended in July that Bynum be suspended, and even though he left office anyway at the end of 2022, that recommendation is still pending before the state supreme court. Bynum, who is fielding yet another complaint filed against him by another judge on his way out of office, says he’s concerned about Kahan’s involvement in any of his future hearings. 

“I do remember once that he basically accused me of being responsible for murders in the county,” Bynum said, referring to Kahan’s statements while at Crime Stoppers. “I don’t think anybody who uses that kind of language with me should ever sit on a commission that’s deciding my fate professionally, and yet now I’m looking at a situation where I may not even have a way to challenge him doing that.” 

Kahan told Bolts that he has not made public comments about Bynum. “Not sure where he is coming from,” Kahan said.

Houston lawyers say Kahan, Ogg and Abbott are reacting to a local judiciary that has started to finally incorporate more than just career prosecutors. “Before, Andy wasn’t an advocate who really had a nemesis, because he liked the DA, he liked all the judges, because they were all former prosecutors and he didn’t really have a lot to complain about,” Newman told Bolts. “It’s just a much more defendant- and constitutional rights-friendly atmosphere now than it was in the 1990s and early 2000s.” 

Newman called Kahan’s selection for a watchdog role over judges an attempt “to turn back the clock.”

“Really, in a nutshell, we’ve got judges who are not soft on crime, they’re just fucking fair,” Newman said. “And the DA’s office is so used to having that extra prosecutor sitting on a bench in a robe that they think fairness is biased against them.” 

Ogg and Kahan both testified at the legislature in favor of the restrictions on pretrial releases that passed last year, and which appear to have compounded deadly and dehumanizing conditions inside local jails. The director of a state commission tasked with oversight of county lockups in Texas warned in a meeting last November that the rise in county jail populations across the state, from 62,000 jail inmates in October 2021 to 70,000 last October, “should be raising red flags for everyone.” More people experiencing homelessness and mental health episodes are now getting stuck in jail on low-level charges like criminal trespass, one sheriff testified at the meeting. 

Kahan has dismissed the notion that new restrictions are straining local jails that already struggled to meet the state’s baseline standards for treatment—including the Harris County lockup, which saw a record number of deaths last year. “Wow—what a disingenuous stretch to blame legislation meant to keep defendants charged with certain violent crimes from getting a get out of jail free card with the amount of deaths at the Harris County Jail,” he wrote on Facebook in reaction to local media coverage. The county’s top jail official resigned earlier this month as deaths, overcrowding and staffing problems continue to plague the lockup. 

“Andy Kahan has been a voice consistently disrupting the idea that people are innocent until proven guilty,” said Jay Jenkins, an attorney with the Texas Center for Justice and Equity, which has advocated for bail reform in Harris County. Jenkins co-authored a 2021 report documenting media bias and misinformation around bail reform in Houston, which cited rhetoric by Kahan. 

“The impact of publicly disseminating views that undermine confidence in the principle of innocent-til-proven-guilty is that you get a lot of people locked up for stuff that they didn’t do,” Jenkins told Bolts. “This notion that people are guilty upon arrest, which is now even more represented on the statewide judicial council, is also at the heart of our jail overcrowding issue,” 

Kahan isn’t the only noteworthy tough-on-crime persona Abbott recently appointed to a state commission tasked with oversight of the criminal legal system. Last summer, Abbott appointed Austin police officer Justin Berry to a state police commission following his indictment on charges of assaulting protesters during the demonstrations that followed George Floyd’s murder in 2020.  

Kahan’s appointment will be taken up by the Senate’s nominations committee, a body that typically does not hold Abbott’s appointees to hard scrutiny. The committee has yet to hold a hearing for Kahan as of publication. 

Last November, he appeared on a Houston TV show to discuss a 30-year-old murder that he said helped launch his career advocating for victims of violent crime. He had been working in the parole division of the Texas prison system in 1990 when a Houston police officer named James Irby was shot and killed during a traffic stop. After seeing news of the murder, Kahan said he pulled his department’s file on the suspect, Carl Buntion, and saw that Buntion had recently been released on parole after serving only 13 months of a 15-year prison sentence for sexual assault of a child. Kahan said the discovery spurred him to meet with the officer’s widow and help her advocate for fewer parole releases and more prisons to hold people. 

The tragedy helped drive media coverage that eventually bubbled into public outcry over prison releases, spurring Texas lawmakers to rewrite sentencing laws to require prisoners to serve more time and paving the way for the state’s dramatic prison buildup at the turn of the century. 

“You hate to say, but you know something positive did happen as a result of Jim’s death,” Kahan told a host for the Houston station KPRC last year, months after Buntion was executed for the murder. “It spurred a movement. It put me on the road to doing what I’m still doing some 30 odd years later.”

The article was updated on Jan. 27 with additional comment from Kahan.

The post A Texas ‘Crime Stopper’ Targeting Reform Judges Could Gain More Power Over Them appeared first on Bolts.

For years, Mason McCormick thought he might never leave the Dallas County jail. His partner, Tammy Hinton, says that McCormick tried “to stay in good spirits,” but that grew increasingly difficult as he approached year four of being incarcerated for drug charges inside a facility that is not designed or staffed to hold people long-term. At the height of the pandemic, Hinton spent every day waiting for McCormick’s call just to know he was still alive. 

“The uncertainty can make you start to wonder if anyone really cares if you live or die,” said McCormick, who was finally transferred to a federal facility in early October. “It takes a toll on you financially, because phone calls every day aren’t cheap, but mostly it takes a toll on your mind.” 

Degrading conditions have long plagued Dallas County Jail but have been exacerbated by both the pandemic and a dangerously high population. As a result, people like McCormick have been stuck in carceral purgatory while a backlog of felony cases grinds its way through the courts. Advocates and people inside the jail say the situation has only worsened in recent years, and the state agrees: The jail failed multiple state inspections in 2021 and 2022, and after an incarcerated person died inside the jail earlier this year, a state review revealed that officers weren’t conducting the required rounds. 

As of this writing, more than 1,350 of the roughly 6,200 people incarcerated inside the jail are either waiting for transfer to a mental health facility or are pretrial detainees whose charges have not yet been filed. Another roughly 2,400 people are awaiting their day in court and are legally innocent. The average length of stay for people who enter the Dallas jail is now 46 days, up from 15 days in 2018. During that time, the city has fought multiple lawsuits: one against the county alleging its bail practices violate the rights of poor and vulnerable people; and another against the sheriff’s office alleging the jail’s current conditions and COVID-19 protocols put its occupants at further risk. 

This slow and bloated legal system persists in Dallas County despite a district attorney voted into office four years ago on a reform platform that promised to “end” mass incarceration. John Creuzot vowed to try and divert people from jail, including by simply refusing to charge people for certain low-level crimes that often stem from homelessness and drug addiction. 

Now running for re-election, Creuzot is sticking to a similar script, pitching himself as a Democrat and reformer. He faces the same Republican opponent as in 2018, former DA Faith Johnson, though her tough-on-crime rhetoric has only grown as the Texas GOP slides further right.

In the intervening years, Creuzot has acted on some of his promises, but Dallas’ jail population is at a six-year peak—and those who get locked up spend even more time behind bars. This record may indicate the limits of Creuzot’s reforms, but also the complexity of upending the court system in a red state like Texas, where power is divided between a plethora of public officials, many of them actively hostile to decarceration.

“The incarceration issue is impacting thousands of individuals in such a harsh way, from loss of job and family to loss of housing,” said Jill Curtis, an organizer with Faith in Texas, a racial, economic and social justice organization that raises money to post bail for incarcerated people. “There hasn’t been a focused effort at the city or county level to reduce this population in Dallas, and the way we see it, it’s at crisis level.”

Sheriffs are ultimately responsible for jail conditions in Texas, and judges are often the final arbiter of whether to detain someone and how to set bail. But prosecutors do get to decide whether to pursue criminal charges and can request certain bail amounts or conditions for pretrial release, says Nick Hudson, a policy strategist with the ACLU of Texas. 

“The DA can reduce the backlog by cutting down on prosecutions, particularly for minor offenses,” Hudson told Bolts. But, he added, “It is going to take everyone working together to reduce the backlog in felony cases. Judges, prosecutors and the defense need a plan to ensure all defendants get access to speedy resolution of their cases.”

Curtis compared the official response to the longstanding jail problems to the Spider-Man meme wherein each iteration of Spidey points fingers at someone else. “The answer we always get is, ‘I’m not an expert,’” she said. “No one is an expert in the jail: Not the sheriff, not the DA, not the county judge. No one.”

“It’s time for real criminal justice reform in Dallas County,” Creuzot said in 2018 when he won the DA race over Johnson, the sitting DA who had been appointed by Governor Greg Abbott after the previously elected Republican prosecutor resigned. (After her loss, Abbott appointed Johnson to the board governing the state’s deeply dysfunctional prison system.)

During that campaign, Johnson trumpeted her record of convicting a local cop with murder for killing a teenager. But local reform groups rallied behind Creuzot, a one-time local judge who had pushed for programs to divert people charged with drugs into treatment instead of jail, making Dallas a key battleground in the growing movement to elect reform-minded prosecutors.

After entering the DA’s office, Creuzot pushed for multiple police reforms; his office says he played a role in the negotiations over a new law requiring cops to keep their body cameras turned on during the entirety of an investigation. He has pressed police brutality cases against local officers, drawing hostility from police unions.

Creuzot also announced early in his term that he would no longer prosecute most first-time charges for marijuana possession, that he would reduce bail requests, and that he would decline the prosecution of crimes related to poverty and addiction, such as theft of items under $750 stolen out of personal necessity.

His reforms echoed similar policies championed by reform-minded DAs elected in San Antonio and Austin, and Creuzot quickly earned favor with some local organizers. “It was a good first set of policies,” David Villalobos of the grassroots political group Texas Organizing Project told The Atlantic in 2019. 

But his announcements also came under heavy fire from the state’s GOP leaders like Abbott and from law enforcement unions. Texas Republicans passed a new bail law last year that is likely to increase pretrial detention. 

Despite Republicans’ pushback, data shows that change has come in fits and starts.

After Creuzot’s marijuana announcement in 2019, pot arrests dropped quickly. Police referrals to the DA’s office declined by roughly one-third between 2018 to 2019, according to research from Southern Methodist University, though the racial disparity in those arrests actually increased. The Dallas police adopted a more formal policy of making fewer marijuana arrests in 2021. Creuzot is also declining most marijuana cases sent to his office; data shared by the office shows that his office dismissed 54 percent of arrests over marijuana possession last year.

Arrests over petty theft have also decreased substantially since 2018, some of it a product of the pandemic, but data provided by Creuzot’s office show the DA is still prosecuting nearly all cases referred by the police. For instance, in 2021 Dallas police filed 1,087 class B theft charges (theft valued between $100 and $750), a drop from roughly 2,900 cases in 2018, the year before Creuzot came into, and roughly 1,800 in 2020.  Creuzot says it rejected just 50 of the cases over those two years, and prosecuted the remaining 98 percent. 

Creuzot still has support from many reformers, though some activists and organizers say they’re frustrated he hasn’t done more to curb mass incarceration in Dallas. 

Curtis, her fellow Faith in Texas organizer Joe Swanson, and other advocates interviewed for this story have urged Creuzot to build a more comprehensive decarceration plan. They want him to refuse prosecution of non-violent offenses and dismiss cases for non-violent offenders currently in jail.

“It can’t just be marijuana. It has to be systemic change: a full-on reversal of what we’ve been doing,” Curtis said. She added that it’s, “very Dallas, and very Texas” to oppose reforms past a certain point (though, as seen with Creuzot’s policies regarding marijuana and theft, police and GOP leaders are quick to oppose any kind of reform).

Creuzot told Bolts in an interview that he is planning such a diversion program for some felony charges, although he didn’t say when it might be implemented .

“We are in the beginning stages of felony pretrial diversion for first-time, low-level offenders,” he said. His office implemented a similar effort for people arrested a second time for misdemeanor marijuana possession. “Once it’s fully up and running,” Creuzot says of the felony diversion program, “we expect many offenders will have a short period of monitoring and the case will be dismissed. Those cases will be eligible for expunction.”

This change would also lead to fewer people ending up in jail for probation violations. There are currently more than 250 people detained there over such violations, but Creuzot says the numbers used to be considerably higher and that he has made progress on this front, too. 

“Contrary to many decades of practice, this office no longer alleges violations of probation terms and conditions that do not impact public safety,” he said, adding that his office does not seek to bring people back to jail for failing to perform community service, for instance. 

When asked if his goals have changed since the 2018 race, Creuzot said they have not. But “circumstances beyond my control have changed,” he added. “For example, the state mental hospital is backed up, causing people in need of restoration of competency services to wait two years for a bed. Or, if the charge is a misdemeanor and either 180 days or one year has passed and no bed is available, we must dismiss the case. These individuals will be released just as ill as when they arrived.”

Ultimately, that increases the chance they’ll be back in the Dallas County Jail. 

Creuzot’s win over a Republican DA in 2018 underscored a long trend in Dallas, which has grown a deeper shade of blue over the past two decades. Running for re-election this year, Creuzot has staked his campaign in opposition to Republican policies, stating he would resist the criminalization of pregnancies and trans youth. 

Johnson seemed to distance herself from the GOP label during her 2018 run, but this year she has largely echoed her party’s criticisms of criminal justice reforms and tough-on-crime talking points. She says that, if elected, she will prosecute the petty theft charges Creuzot has occasionally dismissed. Johnson also blames Creuzot for the rise of murders in the city this year, and faults his decision to forego the death penalty in several high-profile murder cases. While Johnson has mentioned the high jail population in campaign mailers, she has spent much of the campaign pushing policies that would invariably put more people behind bars. 

The county’s commissioners court, which has a Democratic majority, has said that if the jail grows further, the county will send incarcerated people elsewhere. The Harris County jail in Houston, another hazardous and overcrowded Texas facility, recently sent some of its population to Louisiana. 

“They’re not disposing of enough cases,” JJ Koch, the only Republican member on the county’s Commissioners Court, told a Dallas TV station in reference to local judges. In recent months, Koch has floated the idea of cutting judges’ pay as a way to incentivize more movement on the county’s backlog of felony cases. He also said the backlog in trials has meant that prosecutors have been offering fewer plea deals, which resolve the majority of criminal cases.

Koch is running for re-election to the commissioners court in November against a Creuzot ally, attorney Andy Sommerman. In an interview with Bolts, Sommerman rejected criticisms that Creuzot hasn’t done enough to reduce the jail population.

“He is hamstrung to some extent by the statutory requirements of bail,” Sommerman said. “And if we could have a system more similar to New Jersey, where people are incarcerated not on their ability to pay but on their risk to society, then we’d see the actual reform Dallas needs.” 

Civil rights advocates have fought for years to force changes to the bail system in Dallas, as they have in Houston and other Texas cities. In 2018, the ACLU of Texas and Civil Rights Corps sued Dallas County judges, magistrates who set bail, and the county sheriff on behalf of several people detained at the jail, arguing that the county’s bail practices regularly violated people’s constitutional rights. A district court judge agreed and ordered county officials to consider a defendant’s ability to pay when setting bail. But earlier this year, the Fifth Circuit Court of Appeals vacated the lower court’s ruling over procedural issues. 

Meanwhile, people like McCormick wait a long time—sometimes years—inside an overwhelmed system. McCormick himself was detained pretrial in the jail for over a year before entering a guilty plea, and then remained in the jail for more than two years before being transferred to a federal prison this week. 

He was in the Dallas jail as the pandemic spread, and he himself contracted COVID-19. He was also in the jail during the ice storm that devastated the Texas power grid in 2021 and led to a days-long power outage at the lockup. He cannot vote in the November election, but he says he has learned plenty about how incarcerated people are treated and worries about the effect these long years have had on him.

“It’s stress every day like you wouldn’t believe,” he says. “There’s nothing worse than waiting for answers that don’t come.”

The post As Election Nears, Dallas Politicians Have Few Answers for Their Jail Crisis appeared first on Bolts.

On Saturday morning, after a week of delay, past-deadline negotiations, and last-minute bill-writing, lawmakers passed the final bill making up the New York state budget. Governor Kathy Hochul, a Democrat, signed the budget package into law hours later.

This year, criminal justice issues were at the center of negotiations. In mid-March, nearly two months after releasing her original budget proposal and about two weeks before the budget deadline, Hochul sent a memo to the legislature, which is also run by Democrats, outlining largely non-fiscal criminal justice provisions that she wanted to include in the budget. The 10-point “public safety package” was multi-faceted, but mostly geared toward expanding incarceration by rolling back recent reforms to the criminal-legal system and imposing harsher penalties for gun crimes. The controversy surrounding what critics deemed an 11th-hour power move is a major reason the budget wasn’t passed until a week after the April 1 deadline.

The final budget included rollbacks of New York’s landmark 2019 bail reforms, changes to its discovery laws, and expansions of pre-arraignment detention and involuntary inpatient mental health treatment—changes that have been demanded for years by proponents of tough-on-crime policies and have met with resounding condemnation from reform advocates. 

“There will be more deaths in jails and more wrongful convictions as a result,” Roger Clark, an advocate with VOCAL-NY’s Civil Rights Union, said in a statement. 

Still, the changes were far less sweeping than Hochul’s public safety package, and reform critics like Mayor Eric Adams offered only tepid support. Adams signaled he will continue pushing for further rollbacks in the future. “This is only halftime,” he said.

In response to Hochul’s public safety package, the state Senate came up with a set of proposed compromises—first published by New York Focus—which the legislature workshopped and used to negotiate in the days leading up to the budget deadline. The Senate memo excluded about half of Hochul’s proposals and offered scaled-down versions of the others.

What ended up in the now-published budget legislation is mostly an amalgamation of the two proposals. It includes many of Hochul’s public safety provisions — as well as some unwieldy workaround items, the effects of which may not become clear for months, and highly specific provisions that seem to aim to crack down on gun crime but would affect very few cases. Other proposals reform groups had pushed for, like a measure to seal conviction records, were not included.

Here is what made it in.

Bail Reform Rollbacks

Changes to the bail system—which conservatives and criminal justice reform opponents have been urging since the legislature overhauled New York’s bail laws in 2019—have made up the most controversial piece of the public safety package debate, and were a main sticking point in the final days of budget negotiations.

Both Hochul and the Senate proposed provisions addressing what lawmakers have somewhat misleadingly labeled “repeat offenders”—people who are arrested for an alleged crime after being released before their trial for another alleged crime.

Despite some urgent messaging on the issue, New York’s bail law already has a repeat offense provision: Anyone who is accused of a felony or top-level misdemeanor “involving harm to an identifiable person or property,” then released pretrial, and then accused of another crime under those parameters before their trial, is eligible for bail. (Top-level misdemeanors include crimes like theft of less than $1,000, turnstile jumping, and making graffiti.)

In her original public safety package, Hochul wanted to eliminate all of the caveats in that part of the law: A judge would have been able to set bail for anyone accused of any crime after being released pretrial. The Senate rejected that provision in its memo and proposed more minor adjustments.

In this case, the budget language more closely mirrors the Senate’s proposals. For one, it will add a line to the law asserting that theft is included in crimes “involving harm to an identifiable person or property” (unless a judge determines that the theft was “negligible” and not “in furtherance of other criminal activity”). Currently, the phrase goes undefined, and it is up to judges’ interpretation whether theft is included. With the budget, judges will be explicitly allowed to set bail if one is arrested for petit larceny while waiting for another petit larceny trial.

The budget bill will also expand the parameters of bail-eligible repeat offenses to include those that were committed after someone was released by the police prior to their arraignment for an alleged crime. It will also add criminal possession of a firearm to the category of bail-eligible repeat offenses. And aside from repeat offense provisions, it will add two specific gun charges—sale of a gun to a minor and, essentially, possession of a gun with the serial number worn off—to the list of bail-eligible offenses.

New York Focus and Bolts asked Michael Rempel, director of the Data Collaborative for Justice at John Jay College, to estimate the effects of the budget’s bail provisions using non-public New York City data from 2021. According to Rempel’s preliminary analysis, the budget bill will increase the number of bail-eligible cases at about one-tenth the rate that the provisions in Hochul’s original plan would have.

Per a report Rempel co-authored, Hochul’s proposed provisions would have likely increased the number of bail-eligible cases in New York City by 17 percent—or roughly 5,000 per year based on 2021 numbers. Expanding that statewide, other analysts put that number in the tens of thousands. (New York City accounts for roughly 40 percent of the state’s misdemeanors.)

So, according to Rempel’s analysis, the final budget will make about 500 additional cases eligible for bail each year in New York City, and hundreds or perhaps thousands more in the rest of the state. What portion of these additional cases judges will in fact choose to set bail in remains to be seen.

Despite the budget’s decreased scope compared to Hochul’s original proposal, Rempel expressed concerns about the bail provisions. The rollbacks, he asserted, are “non-evidence-based,” as there is no solid evidence that bail reform has led to increased crime.

Furthermore, he calculated that, since most felonies are already bail-eligible, the increase in bail eligibility will fall largely on misdemeanor cases. He then pointed out that most misdemeanors get little to no jail time, and to research showing that pretrial incarceration likely leads to greater recidivism.

“That means that these low-level misdemeanor cases who do face pretrial detention will likely be detained for only a short period of time, and then released, if anything, with a higher likelihood of rearrest than they otherwise would have had they not experienced the documented harms of incarceration,” he said.

Pre-Arraignment Detention

In addition to bail provisions, the budget addresses the Hochul and Senate memos’ proposals to increase the frequency of pre-arraignment detention.

State law dictates when police can hold people they arrest and when they must release them, and the budget adds three crime categories to the list of those that allow for pre-arraignment detention. The first two are hate crimes and criminal possession of a weapon on school grounds, as long as both are allegedly committed by an adult. These will affect few cases, since criminal possession of a weapon on school grounds is a rare charge, and most hate crimes are already eligible for pre-arraignment detention; according to Rempel, in 2021 in New York City, just over 30 cases combined from those categories were ineligible for pre-arraignment detention.

The third crime category the budget will make eligible for pre-arraignment detention is made up of the repeat offenses as defined in the adjusted bail eligibility section—for example, the theft allegedly committed by someone waiting for another theft trial. According to Rempel, the cases that will be made newly eligible for pre-arraignment detention under this category likely “number in the thousands.”

A Dangerousness Standard?

A central point of contention in the bail reform rollback debate has been over what is sometimes called a “dangerousness standard,” or parameters that allow a judge to order someone detained pretrial as a public safety measure. New York has never had an outright dangerousness standard, so judges can only legally set bail in order to ensure that a defendant shows up for their court date—a policy resulting from decades of debate.

The budget will not implement a dangerousness standard. Rather, it includes a stripped-down version of a provision from Hochul’s memo that adds new items that a judge must consider when determining a defendant’s likelihood of returning to court. But those items offer echoes of public safety-based bail considerations.

In determining whether any defendant is a flight risk, the budget will mandate that a judge consider their history of compliance with court orders of protection; the defendant’s history of gun possession or use; and whether the crime the person is charged with caused anyone “serious harm.”

While it’s easy to see how one’s compliance with protective orders relates to whether they are a flight risk, gun possession and the harm caused by the alleged crime are factors more commonly associated with dangerousness. Even though it’s not legally permitted, judges in practice already frequently set bail with an eye to dangerousness. The new provisions could increase that tendency.

Discovery Reform

Like the bail system, New York’s discovery laws—which dictate the procedures for evidence-sharing between prosecution and defense during criminal proceedings—as well as its speedy trial laws, were amended in 2019. Up until then, New York’s rules were among the nation’s friendliest to prosecutors, allowing prosecutors to withhold information until just before trial—with the consequence that defendants often felt pressured into pleading guilty because they didn’t know what evidence the prosecution had against them.

But prosecutors have taken to the press to decry what they describe as undue burdens that discovery requirements now place on their offices, and Hochul included discovery reform rollbacks in her public safety package.

Hochul’s memo, the Senate’s memo, and updated discovery-specific budget language first published by WMHT this week all varied wildly in the way they proposed to amend discovery reform — evidence of a complex and often misunderstood topic. Though public defenders still have concerns, the provisions that ended up in the budget are much less controversial than what Hochul and the Senate initially proposed.

The budget will amend the process for providing late additions to discovery by allowing for fewer consequences if the original discovery was filed in good faith, or the late filing wasn’t the fault of the filing party. It will also soften language that gives judges the power to dismiss cases when one party isn’t fulfilling their discovery obligations, and allow a defendant to apply for pretrial release when there are prolonged disputes over prosecutors’ failure to meet discovery requirements.

The budget will also exempt prosecutors from certain discovery requirements in traffic cases — a point from Hochul’s proposal.

Samuel Feldman, an appellate public defender in New York City, acknowledged that much of the provisions are commonsense, but still expressed concern that prosecutors could take the slack these changes in the law give them and run with it.

“Many judges have proven so unwilling in the past couple of years to actually apply the discovery reform laws against prosecutors who’ve failed to comply with their obligations that I worry that, if you give them any loophole, they will apply it across the board,” Feldman said. He pointed to the provision allowing for fewer consequences for late discovery: “It would be easy for judges to presume good faith and due diligence and basically make the exception the rule,” he said.

The budget’s discovery provisions are a far cry from the provisions in Hochul’s public safety package, which would have allowed courts to deem prosecutors in “substantial compliance” with discovery obligations if they handed over all items that they needed to argue only their own case. This was a non-starter for discovery reform proponents, as it would have created conditions for the prosecution to avoid producing evidence that could prove exculpatory for defendants.

Furthermore, both Hochul’s and the Senate’s memos proposed a provision that will have added an “otherwise unavailable” category to a part of discovery law that excuses prosecutors for failing to turn over evidence that is lost or destroyed. The vagueness of that provision concerned advocates, as it could have provided prosecutors with opportunities to prematurely give up on obtaining important records.

The Hochul and Senate proposals also would have defined “otherwise unavailable” evidence as that which has never been in prosecutors’ direct “possession” and which they made “a diligent, good faith effort” to obtain. This deviates from the discovery reform law, which, critically, also placed law enforcement material under prosecutors’ legal “possession.” The disparity led public defenders to assert that the Hochul and Senate proposals would have provided prosecutors more of an opening to fail to turn over, for example, police body camera footage, which often favors defendants.

Involuntary Commitment

Hochul’s plan included an expansion of what is known as Kendra’s Law, which, among other provisions, allows the state to involuntarily commit people to inpatient mental health treatment if a court finds that they pose a “substantial” risk of harming themselves or others.

Hochul’s plan called for the state to also involuntarily commit those who appear to lack “significant capacity” to feed, clothe, or otherwise take care of themselves, or to “accept” help. The governor said the expansion would help address “the acute needs of the seriously mentally ill.” Critics characterized it as a criminalization of mental illness.

“People with mental illness are more likely to be victims of crime than perpetrators of it,” the New York Civil Liberties Union wrote in a statement. “But the Governor’s proposals presume that people living with mental illness are criminals.”

The Senate’s proposal took a different approach—though one still tied to the criminal-legal system. It called for adding new subsections to criminal law to allow a court to order a mental health assessment—which could still result in involuntary commitment—as a condition of pretrial release for people accused of crimes.

In this instance, the budget adopted adaptations of both proposals. It adds subsections to criminal law to allow for a court-ordered assessment with the possibility of involuntary commitment. And it expands Kendra’s law to allow for court-ordered outpatient treatment for those who completed an outpatient program and have “experienced a substantial increase in symptoms of mental illness” that “substantially interferes with … major life activities.”

Other Public Safety Package Provisions

With only slight variations between them, both Hochul’s and the Senate’s memos proposed to lower the threshold to prosecute people for gun trafficking, and a version of their proposals made it into budget legislation. Previously, one was guilty of second degree gun trafficking—punishable by three and a half to 15 years in prison—if they gave away or sold five or more guns in a year; the threshold is now two guns. For first degree, which carries a five to 25-year sentence, the old threshold was giving or selling 10 guns in a year; now it’s five. Additionally, in New York, a person was presumed to be possessing guns with the intent to sell them if they have five or more, and the budget lowers that to three.

The budget also closes a jurisdictional “gap,” per Hochul’s memo, by giving family courts jurisdiction over those arraigned as adults for a crime allegedly committed before they turned 18, and mandates community-based treatment referrals for youth released from family court.

And it includes provisions that will require the courts and the state government to collect data on prosecutors’ bail requests and how judges ruled on them, which was an item in the Senate proposal.

The post How New York Just Rolled Back Criminal Justice Reforms appeared first on Bolts.