Mimesis Law
23 July 2019

New York Times Goes Full Jekyll & Hyde On Bail Reform

Oct. 26, 2015 (Mimesis Law) — In our world, bad things happen, and no amount of preparation can fully prevent that. This is not to say that we should not attempt to reduce harm when feasible, hence seat belt laws, the FDA, and assault weapons bans shin guards.

But not all instances of tragedy deserve a governmental response. When the shoe-bomber failed to create the terror he intended, the government determined that every air traveler must remove his or her shoes before boarding a plane (the goal is safety or the appearance of safety?). But while our government has us taking off our shoes, getting our car seats inspected at the fire house and following volume upon volume of rule after rule, they have ignored almost any attempt to deal with one tragically common occurrence – the shooting deaths of black men.

But last week, that changed. The recent shooting death of Randolph Holder, a black man, has drawn the attention of New York’s top dog, Mayor Bill DeBlasio NYPD Commissioner Bill Bratton. Not because he was yet another victim of police violence, but because Holder was a police officer himself.

Apparently over the weekend, the New York Times decided to throw their weight behind Bratton and de Blasio. The Paper of Record printed a split-personality defense of the two Bills and their crusade for preventative detention, titled Wise Moves After An Officer Dies.

Tyrone Howard was free and now Officer Randolph Holder is dead, an injustice that rightly provokes fury and dismay. Mr. Howard is the drug felon and fugitive who the New York City police said shot Officer Holder in the head in a gun battle in East Harlem on Tuesday night.

Fury? Yes. An innocent man was shot and killed. Dismay? Why should we be dismayed? We are constantly reminded of how dangerous it is to be a cop, despite the job having a fatality rate lower than sanitation workers, roofers, loggers, taxi drivers, and construction workers, to name a few. Do we pine over our collective dismay when a construction worker or roofer dies?

Never mind that, says the New York Times editorial board. Allow us, instead, to take you on a journey of inconsistency that will make your head spin. First, from Mr. Hyde.

The killing has led to reflexive denunciations of the judge who last year ordered Mr. Howard into drug treatment instead of prison. Police Commissioner William Bratton and Mayor Bill de Blasio have both declared emphatically that Mr. Howard should never have been out on the street, and given what happened, they are right.

No, they are absolutely not right. DiBlasio and Bratton are promoting preventative detention, an idea that is the antithesis of our system’s foundational principle, the presumption of innocence. The Mayor, Commissioner and The Times would apparently find fault with the release of anyone who might eventually commit a violent crime. This is little more than shallow political grandstanding and an attempt to feed the government’s addiction to the carceral state.

Now, a turn from Dr. Jekyll.

But the tragic circumstances of this killing should not lead anyone to draw false conclusions — that the judge acted irresponsibly, that too many criminals are being coddled, that drug-diversion programs and other criminal justice reforms are misguided, or that the system needs to tilt ever more toward harshness than toward humanity.

You, sir, are much more reasonable gentleman than Mr. Hyde. Perhaps that is why you are a doctor. Our flaming wreckage of a justice system currently places all the power in the hands of the government to mete out punishment carte blanche, while providing scant resources to those tasked with defending actual people from an often unjust fate. Harshness over humanity. I couldn’t have said it better myself, Doc.

But Mr. Hyde has something to add.

It is encouraging to see officials like Mr. Bratton and Mr. de Blasio rising above rage and reacting in a way both measured and realistic. On Friday, Mr. de Blasio called for two sensible changes to state laws. One would allow judges to consider public-safety risk when setting a defendant’s bail. The other would require judges to consider public-safety and flight risks when deciding whether a defendant is eligible for a diversion program.

Oh boy. Only a fool would think that hindering potential threats is not already the primary factor in most judges’ decisions to set bail. However, the threat that many of these judges have sought to ameliorate is their name ending up in the paper because some knee-jerk know-it-all thinks they should have been able to predict the future with absolute perfection. Jails all over New York are filled with people who are presumed innocent because locking up someone is always safer (for the judge) than following the law.

But the New York Times thinks that calls from City Hall and One Police Plaza to codify this cowardice into the bail statute is “measured and realistic.”

The proposed changes will not bring back a courageous officer, but they may help protect others.

Apparently Dr. Jekyll is in the bathroom. The proposal to “allow” judges to consider public safety in setting bail may help protect other cops. Wait, why is this only a concern when it comes to the safety of police officers, and not, say loggers or garbage men?

They are an imperfect answer; if nothing else, the East Harlem shooting underscores the agonizing judgment calls that the criminal justice system has to make when weighing the facts of criminal behavior and drug addiction against the uncertainties of punishment, deterrence and possible rehabilitation.

Welcome back, Doctor. Indeed, judges are asked to set bail on almost every defendant that appears before them. Prosecutors make these demands without providing any credible evidence to the court. Judges should be praised, not blamed, for the times that they follow the law and refuse to bow to the pressures of cops, DA’s, and the press.

One of the judges in Mr. Howard’s case, Edward McLaughlin of State Supreme Court in Manhattan, examined Mr. Howard’s long, troubled record and concluded, sensibly, that prison wasn’t going to fix him. Justice McLaughlin knew of Mr. Howard’s PCP addiction but apparently did not have reason to lock him up as a violent criminal; Mr. Howard had been arrested, though not charged or convicted, in a shooting in 2009 that wounded two bystanders in East Harlem. According to The Times, while the prosecutor opposed diversion and recommended a six-year prison term, he did not argue “strenuously” against diversion, nor did he tell Justice McLaughlin that Mr. Howard had been a suspect in the shooting.

Oh lord. This guy again. Mr. Hyde, the presumption of innocence applies to people charged with crimes. I know you neither agree with nor truly understand this principle, but it is kind of a big deal. This presumption applies especially to PEOPLE WHO WERE NEVER EVEN CHARGED! Howard’s previous arrest has absolutely no relevance to the topic of bail reform. It is easy to sit back, after the fact, and scour the life of Howard for warning flags.

The true problem with the bail system is not that judges hands are tied. It is that so little is required of the police and prosecution, every defendant can be made to sound like the next Ted Bundy. There is not a lack of fear in arraignments. There is a lack of evidence and the practice of law.

But, let me hand it back over to Dr. Jekyll.

Warning flags are often but not always present in criminal cases, and they are perfectly reliable predictors of danger only after the fact — which is usually when policy makers step in with quick fixes.

See, this guy knows what I’m talking about. We have reams of laws named after the latest high-profile victim because politics is all about looking like you care about fixing a problem, while doing little to actually fix that problem.

The justice system and the prisons are littered with the consequences of ill-considered, feel-good decisions to reduce risks to public safety, like the Rockefeller laws that wasted the lives of countless drug offenders, and laws that give judges no sentencing discretion or send defendants away for good after “three strikes.”

The good doctor recognizes that moving away from due process and towards rigid “tough-on-crime” policy is politically popular but dangerously counter-productive. If only he would explain this nuance to that Hyde dunce.

The East Harlem case shows how the system actually runs on feel-bad decisions. Should a judge choose to lock up a defendant to prevent the possibility of a future crime? Or take a gamble on saving him through treatment to help him break free of addiction and crime? Justice McLaughlin lamented that there are no crystal balls. Bail reforms may give the system better odds of making the right call — which is the best we can hope for.

Fancy words. Inconsistent positions. Feelz-based-conclusion. This closing paragraph of the Times editorial is a Jekyll and Hyde unto itself. In one sentence, it lauds Judge McLaughlin for recognizing that in criminal justice (as well as all things unrelated to gypsies or Disney tales), there are no crystal balls. In the very next sentence though, that logic is turned on its head by an unequivocal argument that this uncertainty can be removed from the process by giving judges the legal equivalent of a crystal ball.

Two years ago, when New York City elected Bill DeBlasio as mayor, many of those votes were cast as a repudiation of the NYPD and the way they did business. But we have watched as the Mayor Jekyll we thought we elected has become the dutiful servant to NYPD Commissioner Hyde. Or maybe like the editorial board of the New York Times, Jekyll and Hyde have always been the same person.

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  • Cindy
    26 October 2015 at 9:33 pm - Reply

    “…Tyrone Howard was sentenced to a residential drug diversion program, but there weren’t enough beds, and so he was back on the streets.” Jim Hoffer, Suspect in Cop Killing Failed To Check In With Courts During Drug Program, ABC7 Eyewitness News, Oct. 23, 2015 at http://abc7ny.com/news/suspect-in-cop-killing-failed-to-check-in-with-courts-during-drug-program/1048299. “Howard avoided prison last May by agreeing to undergo 18 months of inpatient residential treatment in a drug rehab facility. But the treatment was delayed because there was no bed available. Instead, the Drug Court program required Howard to check-in once a month for drug testing. The first two months he showed up, in September he didn’t.” Id.

    Assuming that Tyrone Howard was the one who shot Officer Holder, the fact that there were no beds available was an intervening event that set the wheels in motion for this tragedy to occur.

    The salient question: Why was this good program underfunded? Isn’t that the question everyone should be asking before they talk about “bail reform”?

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