Et tu, Democrats?

Democrats in New York seized an opportunity on the key criminal justice issue of bail reform only to backtrack in the midst of a pandemic.

UPDATE: In the wake of the George Floyd killing and massive protests, New York Democrats in early June 2020 undid their undoing of bail reform in New York, the subject of this post. Protesting works, y’all.

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At Untold Story, I’m looking to work through and diagnose what ails political media coverage and deliver journalism that clarifies our American political moment going into the presidential election in 2020. It’ll be a process. I’m Jeremy Borden, independent journalist, reluctant political junkie, with a sense that more of us need to tilt at windmills if the mess that has been made of the American Experiment is going to continue.

Lately, I’ve been more focused on what seems to be the enduring and devastating legacy  of Ronald Reagan’s crusade against government. Also, and it’s been months since I’ve delved into it, but former Chicago Mayor Rahm Emanuel has found new media outlet to help him try to re-write his legacy. (And it looks like it’s working).

Today gets at one of those things I feel myself talking in circles about all the time: Why is it so hard to describe why both political journalism and politics overall is failing us? It has less to do with Team Red vs. Team Blue than we’re led to believe. Sometimes, there are stories that can begin to help us understand why. 

Photo by Emiliano Bar on Unsplash

In the midst of pandemic, New York Democrats roll over on bail

After the 2018 midterms ushered in Democratic control of New York’s statehouse for the first time in many years, progressive advocates there were primed for some major wins when the legislature convened the following January.  

As far as criminal justice is concerned, it’s worth taking a moment to appreciate what had brought even the possibility of change to the lock-em-up mentality that has been a bipartisan rallying cry for decades. In recent years, advocates and legal scholars have helped convince an increasing bipartisan majority that the New Jim Crow isn’t exactly “justice for all.” In a sign of the confusing times, the tough on crime GOP in Congress got a little religion and, pushed by Trump son-in-law Jared Kushner, passed a relatively minor but needed and long-awaited federal criminal justice reform bill in 2018.  

As a part of the trend, bail and bond — or having to put up money or collateral to ensure you’ll return for a scheduled court date — should be an easy one for liberals and conservatives alike. Accused does not mean convicted, and “innocent until proven guilty” is a bedrock of American judicial principle, which is hardly conveyed to those who are awaiting trial for months or even years in a cramped jail cell, all at an exorbitant cost to taxpayers. Bail has profound consequences: those who can’t pay lose their jobs, custody of their children and often never recover regardless of what happens to their case. Rather than sit in jail, prosecutors dangle a plea deal — the way most criminal cases end — and have been found to give better deals to white defendants, the plea deal dance serving as a pressure campaign to plead guilty and get out rather than wait for their day in court.

Bail is designed to provide the court with collateral, insurance that a defendant will show up for her court date. In popular discussion, even in a courtroom, it serves as a proxy for how dangerous a defendant might be while awaiting their trial, although flight risk and danger are two very different things and often badly assessed by courtrooms across the country.  To me, though, the best argument against bail is that how much money you have has nothing to do with whether you’re a dangerous person or a flight risk. As professor and author Nicole Gonzalez Van Cleve pointed out to me, somebody who commits a minor assault is laid to waste in jail because they can’t pay while a monster like Harvey Weinstein simply pays the toll and awaits trial as a free man. Blind justice has always had money on her scales, and this is as stark an example as any. 

That’s started to change around the country. New York’s bail reform bill in 2019 took almost all misdemeanors and many other non-violent crimes off the table for bail, while those who were accused of many felonies still had to post large bail amounts to await trial outside of a jail cell. It was heralded as a bold reform. 

But a backlash was brewing.

The bail and bond industry has full-time lobbyists in New York and other state legislatures, and cops and prosecutors view pre-trial detention as a key component of the system. And the campaign they ginned up to pin bail for all matter of ills when the new law was implemented this January was vicious.

“We knew this [backlash] would happen. We didn’t anticipate the intensity as well as we should have,” Nick Encalada-Malinowski, a campaign director for the advocacy group VOCAL-NY told me. “This was like a dog in the corner situation for the cops and DAs.”

When an apparently mentally ill woman was arrested and re-arrested for anti-Semitic slurs and assault in Brooklyn, police notified the media — playing up the supposed bail-hate crimes link particularly in the conservative New York Post — with each and every arrest, blaming bail as the culprit. A surge in arrest numbers in January in New York City prompted much hand-wringing, even as defense attorneys pointed out that those arrests hadn’t resulted in fuller court dockets — meaning arrest charges were dropped before they could get any scrutiny from a judge or prosecutor. 

Advocates charged that the cops were juicing their arrest numbers as a part of their fear campaign against the new bail reform measure.

The campaign, though, had its intended effect. A January poll found that a majority of respondents no longer supported the bail reform bill.

 As police and DAs twisted arms in the state capitol amid the media-fueled backlash campaign, Democrats began to feel the pressure. As the New York Times summed up:

A serial bank robber who struck again four hours after he was released from custody. A wall of white faces in police uniforms, filling the State Capitol steps in protest. A protected witness bludgeoned to death.

These are some of the images and incidents that have been used in what has become one of New York’s most divisive political battles in years: a bitter, often racially tinged debate over the state’s new bail and discovery laws. Since the changes went into effect, law enforcement officials across the state have drawn attention to crimes committed by people freed without bail.

Some saw through the campaign. “I don’t need any fake-ass legislators allowing fear-mongering,” as one (pretty awesome but still corrupt because New York) Democratic Assemblyman put it. 

In April, the ‘fake ass legislators’ rolled during a raucous budget debate, adding crimes that judges could impose bail for and, ultimately, caving to the scare campaign.

The legislature’s resulting rollback of some of the reforms is, no doubt, a massive blow to a criminal justice movement that needs forward momentum, the optics of which were even worse because defense attorneys during that very same week were pleading for their clients to be let out of jail lest their charges or convictions turn into a COVID-19 death sentence in a crowded jail cell.

It also showed Malinowski, the activist who worked on New York’s bail reform campaign, that “[bail reform] doesn’t really matter to the bulk of the legislature,” he said. 

“The options before the Democratic Party in the state of New York were ‘do we raise taxes and address the needs of the community or do we throw people in jail?’ We’re  throwing people in jail,” he said.

First, though, I want to point out some good news. While the legislature did roll back some key provisions of the law — making eligible more types of crimes for bail — the legislature left intact a good portion of the original law. The amended law should reduce the jail population by 30% absent any reform and 84% of arrests made in New York City the year before would have been automatically ineligible for bail under even the newly-amended law, according to a study by the Center for Court Innovation. 

The scare campaign and its success mounted by opponents — and the, well, flexibility of Democrats—is what bodes badly for potential rollbacks in the future, as well as other reforms susceptible to fear campaigns. 

As a group of law experts complained in a letter they wrote to the New York Press Guild, local media turned up the volume on the scare campaign, as the media reflected the prosecutors and police who waged the campaign.

Contrary to Willie Horton-like claims that bail reform will make New York more dangerous, the evidence shows that an over-reliance on pretrial detention makes us less safe. Pretrial release can effectively ensure that people return to court and positively impact community safety. Under the new law, judges can order monitoring of individuals if there are flight risk concerns. They also still have the ability to impose bond in serious cases: most violent felonies, sex-related charges, and certain domestic violence charges remain cash bail-eligible. However, those kinds of cases are actually a small minority — historically, only 10 percent — of the cases that come through New York’s criminal courts. 

Van Cleve, a Brown University professor and author of Crook County, which exposes racism in and around the Chicago court system, called bond court a “special place” in the Chicago courthouse. Judges, she said, tend toward locking people up for a variety of reasons, worried that if someone does commit a crime while pending trial they’ll be blamed in an upcoming election. 

Lawmakers have a similar calculus. “When the responsibility falls on the legislature they’re worried about getting ousted,” Van Cleve said. “They don’t want to own ‘it was on my watch that crime went up’ and largely this is affecting the poorest of the poor. It’s not like this is affecting everybody equally.”

Malinowski said that’s exactly what happened in Albany. Going into the crucial 2020 election, Democratic control of the statehouse means they’ll get to gerrymander their majority toward an even safer, perhaps permanent, majority. They may have been playing defense when they didn’t need to: Democrats are heavily favored to retain control of both chambers in the statehouse in 2020 in New York, according to the Cook Political Report. 

Democrats’ messaging on bail was “an awesome opportunity for a paradigm shift and a political win,” Malinowski said. Democrats could have begun to push for spending money not on jail but on services that could help the perennially arrested — housing, mental health and domestic abuse services key among them.

“They’d rather spend money where it’s politically safe,” Malinoswki said. 

Unsexy issues like campaign finance would help, as big donors and their corporate backers consume the agenda in statehouses and Congress, this time, though, in the form of both a for-profit bond industry and prosecutors protecting their turf. Big constituencies that vote also can demand action far more effectively — the poor and incarcerated are among those with the least political power. “Were never going to convince the legislators to do the right thing,” Malinowsky said. “That’s not how it works.” 

Absent that, while money buys power, so do people. “It’s building enough political power that regardless of the candidate they have to engage with you in a real way,” he said. 

For me, it also comes down to leadership. It’s a lot easier to vote for something and run for the hills than it is to plant firmly and explain why and how things have to change, adjusting based on evidence, not fear. In politics, they say if you’re explaining you’re losing — but maybe we should find some new politicians to change what counts as conventional wisdom. 

Read These…

What’s a writer to do when the subject is the most explored and unknowable person in the world — aka Michael Jordan? Understand where he came from. The indelible Wright Thompson forms a portrait of MJ not from the traditional sources, but from the North Carolina soil that he came from. (ESPN)

Bonus Read on bail reform: “The drive to detain is so powerful, the drive to detain and punish mostly black and brown people from low-income communities is so strict, that it doesn’t matter how careful we are as advocates, how deliberately we approach the issue, present our facts and statistics, show the benefits. Even if we’re tactical and we tiptoe, it’s coming anyway. The backlash is coming anyway.” (The Intercept)

I recently finished Jeff Himmelman’s biography, Yours in Truth, of the famous Watergate-era Washington Post editor Ben Bradlee. I went in wanting to hate an old and probably overly-mythologized era of newspapering, but Ben Bradlee is just too damn likable and I mean come on, it’s Woodstein.

From a historical perspective, the book has two big takeaways: Woodward probably made up at least some of the “color” around his Deep Throat Watergate source — Bradlee throws some cold water on the cloak and dagger tales Bob Woodward told with the underground garage in Arlington and all that. (There’s no reason to believe that any part of Woodward’s Watergate reporting, though, is to be doubted with the exception of already-acknowledged and documented mistakes in an otherwise incredible run of brave journalism). 

And then there’s this footnote, which I put up there in the pantheon (if there is such a thing) of all-time stunners of a footnote. George McGovern is, of course, the ghost who haunts the Democratic Party to this day. The conventional wisdom is this was the time that Democrats tried to go with a progressive candidate and lost in a landslide to Nixon, and, ipso facto, no real progressive could ever actually win a presidential election in the U.S.

I don’t think that argument holds water and McGovern as bogeyman needs to be shelved. But either way, few talk about how McGovern probably shouldn’t have been the nominee in the first place that year because Republicans’ political sabotage of his rivals was successful. 

As Himmelman relates in a starred footnote:

The thing most people don’t realize is that the dirty trick operation worked. The Republicans feared [Edmund] Muskie and Teddy Kennedy the most, and wanted explicitly to run against McGovern, whom Nixon summarily defeated in a landslide.

Antionette Kerr bravely documents the scourge of missing and murdered indigenous women in North Carolina. (Scalawag) 

In the U.S., and internationally, there is an epidemic of Missing and Murdered Indigenous Women (MMIW). More than four in five American Indian and Alaska Native women have experienced violence, and more than half have experienced sexual violence.

But this crisis is not limited to the western states, where Native populations are largest.  It’s also plaguing the Lumbee Nation, a state-recognized tribe in North Carolina with more than 55,000 members, the largest Native population east of the Mississippi River.

Despite their numbers, Lumbee tribe members say they feel invisible, as law enforcement and legislators have turned a blind eye to the MMIW crisis in their backyard.

Matt Taibbi on the SEC rule that destroyed the universe, the little-known Reagan-era federal rule that allowed stock buybacks:

“When companies spend billions on buybacks, they’re not spending it on research and development, on plant expansion, on employee benefits,” says Dennis Kelleher of Better Markets. “Corporations are loaded up with debt they wouldn’t otherwise have. They’re intentionally deciding to live on the very edge of calamity to benefit the richest Americans.”

Lyle May, from behind bars, writes on the abolition of parole in North Carolina and the ongoing health crisis that is sure to get worse (Scalawag):

People in prison do not lose all of their rights, and are constitutionally entitled to a certain level of dignified care. When the penal system is no longer capable of maintaining its responsibilities because there are too many people in prison, it is time to reinstate parole for all of the incarcerated. That time has arrived.