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Why Can’t We Stop Backtracking on Bail Reform?

What role do narratives around bail and public safety play in creating the environment where these bad legislative outcomes seem inevitable?

In April, New York state lawmakers rolled back reforms to the state’s bail laws. If that sounds familiar, it’s because bail reform has now been rolled back three times as a continuous drumbeat of “tough on crime” rhetoric from the media and politicians has paved the way for more and more backsliding. Why does this keep happening? What role do narratives around bail and public safety play in creating the environment where these bad legislative outcomes seem inevitable? How can we stop this dynamic from repeating and what exactly did lawmakers do this time around?


[00:00:00] Intro: “New York is rolling back some of the bail reforms passed in recent years.

Governor Kathy Hochul has said the state will keep repeat offenders off the streets.

Bail is one of the biggest issues holding up the budget, which was due April 1st.

Governor Hochul is giving judges more power in the State’s recently passed budget, which frees them while setting bail.

Excessive media coverage of some crimes and political opportunism have led to the incorrect impression that overall crime is rising and that has led to the recent bail reform changes in New York.”

[00:00:34] Simon: In April, New York State lawmakers rolled back reforms to the state’s bail laws. If that sounds familiar, it’s because bail reform has now been rolled back three times as a continuous drumbeat of tough on crime rhetoric from the media and politicians has paved the way for more and more backsliding.

[00:00:52] Why does this keep happening? What role do narratives around bail and public safety play in creating the environment where these bad legislative outcomes seem inevitable? How can we stop this dynamic from repeating and what exactly did lawmakers do this time around? We’ll cover all of that with two guests.

[00:01:12] First, we’ll talk to media analyst and fellow podcaster, Adam Johnson, who co-hosts the “Citations Needed” podcast. Then we’ll break down what exactly these bail rollbacks were this time around with NYCLU Policy Counsel Jared Trujillo.

[00:01:30] Welcome to Rights This Way, a podcast from the New York Civil Liberties Union, the ACLU of New York State. I’m Simon McCormack, senior staff writer at the NYCLU, and your host for this podcast, which is focused on the civil rights and liberties issues that impact New Yorkers most.

[00:01:52] And now I’m joined by Adam Johnson. Adam is a media analyst and the co-host of the “Citations Needed” podcast. You can find his writing at Adam, thank you for coming on Rights This Way.

[00:02:07] Adam: I’m excited.

[00:02:08] Simon: Yeah, we’re excited to have you. I’m curious if you could just kind of talk about the unique sort of perspective that you come from the issue of, bail and, sort of the things that you’ve broadly been noticing. And I also just wanna make clear to folks that Adam does not speak for the NYCLU. The NYCLU does not speak for Adam. We are separate entities, but joined together today very happily on this podcast episode. So, with that, Adam, I’d love to turn it over to you.

[00:02:38] Adam: So the popular misconception about bail reform is repeated in supposedly progressive outlets, television shows like Law and Order, every single night on Fox News, local news you know, ad nauseum, is that bad guys get arrested for things like carjacking, petty theft, robbery, larceny, you name it.

[00:02:55] And they’re quote unquote back on the streets the next day. Because of a bunch of far left radical ideologues may or may not be backed by a George Soros web of, you know, conspiracy that they’re sort of getting arrested for these heinous crimes and sort of they’re back on the streets.

[00:03:08] The assumption when people say that they are meant to heavily imply, and I think somewhat cynically and somewhat deliberately, that there is no actual subsequent prison sentence, that there’s no trial and they don’t go to prison. This mode of deceit and disinformation, which, you know, maybe bail reformers ought to have been better at attacking I think much earlier and reframing much earlier, pretty much defines the entire debate such that it is, right? Because what all that matters politically is what people think, not what the reality is. But of course, as y’all know, and I, I assume many of your listeners know that’s not how bail works. Bail is not meant to be punitive. It is meant to assure someone shows up to a court date when they’re later convicted by, at least in theory, a jury of their peers. It’s not meant to be a mechanism for punishment.

[00:03:55] We know this because rich people can get out whenever they want, for the most part, short of, you know, very serious crimes or considerations, right? When Harvey Weinstein was arrested from multiple counts of rapes in, in 2017, he was literally out on a million dollar bail the next day because he is rich.

[00:04:09] So, we’ve had bail reform for the rich for many, many decades. What the bail reform movement was attempting to do is attempting to make being poor, not per se, a reason why someone languishes in jail for sometimes months and oftentimes for years.

[00:04:23] That is not manifestly how this narrative has played out because people don’t understand that basic fact because they’re constantly being lied to, I think deliberately, by people in the media, by local news, even some, again, supposedly progressive or liberal media. And that’s a really hard narrative hurdle to overcome because, intuitively, if someone sees a video of a carjacking, they’re sort of one of the more heinous things you could think of, you know, I have a kid in the backseat, right? I have a toddler in the backseat of my car all the time. And then they, and then they just followed up by saying this person was out on the streets the next day or whatever kind of fear mongering language one wants to use. Then that’s pretty much game over from a propaganda standpoint.

[00:05:00] Right? Like you, that’s hard to compete with. And that’s sort of where we intervene cuz I, I think that the legal minutia is important, you know, in terms of how the nuts and bolts play out. But, in terms of how public opinion is shaped, they could give two shits about the minutia.

[00:05:15] Simon: Yeah. That completely makes sense and I have noticed, to the media’s credit, like quite a few stories that mentioned, you know, various studies that have come out that show there’s, there’s not really any link between an increase in crime and bail reform.

[00:05:34] Right? And in fact there was a recent study that actually showed that non bail eligible offenses, there was actually a reduction in crime for those offenses. So there are stories about that, like I’m, I’m aware of that. But it doesn’t seem like that has had really much impact in slowing the momentum for, further rollbacks.

[00:05:53] I’m curious if you have thoughts on that.

[00:05:55] Adam: Well, because the stories are very rare. I mean, and they, and they have to be aggressively placed by advocates. I mean, these are not common. Right? If you have certain advocacy groups that have enough funding, they can kind of get those stories out there.

[00:06:07] And even some, maybe more liberal editors at the New York Times may even highlight that, but then you’d flip the page to their crime coverage and it’s sort of wall to wall anti-bail reform stuff. I mean, it’s just nonstop. And it’s been nonstop. It’s, it was, they were doing anti bail reform before they even implemented the law in 2020.

[00:06:22] I remember, cuz we did an episode on it before they even did it. You know, it’s just, you’re, you’re appealing to, frankly the id. Cuz you know, the argument is that this is, this has always been the problem with criminal justice reform on a basic level, which is the Willie Horton problem.

[00:06:36] Which is that, you know, the famous 1988, Willie Horton in Massachusetts is out on furlough and goes off and commits an attempted murder while being incarcerated for rape and murder. And so then basically they get rid of the furlough program, you know, the next year. Because, if you lock everyone up, you run no risk politically.

[00:06:56] That’s why the default position has always been to mindlessly lock people up in this country, politically. Cuz it’s the safest play. Because the violence, the other side of the equation, the violence in prison and jails it’s unseen.

[00:07:05] It’s not on the nightly news. You know, the ACLU in California of course is suing the Los Angeles County Police for people being chained to metal chairs, not getting diabetes medications, literally sleeping in their own vomit and shit and piss. This is a pretty detailed lawsuit.

[00:07:19] Even whistleblowers within the corrections union were, were talking about it, which is when you know things are bad. But this is not seen, you know, the nightly news doesn’t open up with stories about people being, being raped, sexually abused, beaten, you know, involved in underground fighting rings as is a case in some jails.

[00:07:35] The violence is simply not seen. It’s it’s, it’s unpersoned. It’s put into a, a little black hole. we don’t really get any pop depictions of what it’s like in prison jail, but we hit the constant narrative stories about street crime. And so the other side of the equation, the, the violence, the sort of banal everyday violence of mass incarceration is just not part of the equation.

[00:07:52] It’s not reported on, you know, murders that happen in prison are not part of murder statistics.

[00:07:57] Simon: Mm-hmm.

[00:07:57] Adam: Rapes that happen in prison are not part of rape statistics.

[00:08:00] Simon: Right.

[00:08:00] Adam: Because these people are un personed and the only time they ever get a voice is maybe the occasional kind of boutique liberal, progressive or, you know, activists, but they can’t really compete against those broader carceral forces.

[00:08:12] That’s why those stakes are difficult to kind of establish because, they’re poor, they don’t have a constituency, again, they’re largely Black and brown, they’re unseen. Every single time there’s a somewhat vaguely pro cop Black politician, we get a thousand New York Times piece saying, look, this is the true voice of the Black voter, but then if you actually map people who vote for progressive DAs and Black electeds who are reformers, for example uh, you know, Brandon Johnson in Chicago, it maps perfectly along, gun violence and crime. So-called quote unquote Black on Black crime. Right? And this is true in Philadelphia. It’s true in Dallas, it’s true in––John Pfaff has, has done several of these studies. He shows the graphs that the poorest most victimized by crime are the ones voting for reformers.

[00:08:52] Simon: Hmm.

[00:08:53] Adam: And those voices, again and again, and again, it’s the single most statistical probability that Black communities vote for the more progressive DAs, they vote for the more progressive mayors. Uh, for the most part. It’s not that simple, but it’s a, it’s far more nuanced, but that it doesn’t fit into the New York Times narrative that Black people are crying out for more cops and cages.

[00:09:09] And so you have this very sophisticated kind of two-prong effect. You have the right-wing media, which does the constant kind of demagoguery, knockout game type, snuff videos, all this stuff. And then the liberal media constantly kind of launders that basically the same argument. Through the supposed platonic voice of the Black voter who, who really secretly loves cops and who wants to have more cops. And from a, you know, narrative standpoint this makes it difficult for people to really humanize the other side of the equation. And there was a sort of brief moment in 2020 when everyone acted like they cared about these things and acts like they cared about racism. But that lasted for all of six months, if not less.

[00:09:42] And so there just isn’t a comparable humanization media narrative that makes people see that when you unperson people, when you sort of arrest them and put them in jail, that there’s a human on the other end of that. They’re not a statistic. They don’t just go away, they don’t go into like hibernated suspension like Star Trek, there’s a human that goes somewhere. And that place is extremely violent and extremely dehumanizing. And it doesn’t really matter how many studies you show that, you know, because people keep bringing up studies to show bail reform actually reduces crime or has no effect on it. The people aren’t gonna believe that because it just doesn’t fit into the equation.

[00:10:15] And the goal of prisons and jail is always to, of course, manage the surplus population. And so they just want the surplus population out of the way. Uh, You see this increase in with the incarceration of homeless people.

[00:10:25] The goal is to just get visible poverty out of the way.

[00:10:27] And everything else is sort of reverse engineered to meet that policy goal.

[00:10:31] Nobody really wants to deal with the kind of messy redistributive politics of other forms of reducing crime.

[00:10:36] Simon: And I just actually, I want to, I wanna stop you there cause I, I do want to get into that because and I know that like, on “Citations Needed”, you’ve made the analogy that when it comes to police reform, that if people are, only offered police as the option for public safety, it’s, I think your analogy is, you know, it’s like if you’re drowning and somebody throws you a barbed wire, you’ll grab the barbed wire because that’s the only option.

[00:11:03] But it doesn’t mean people are crying out for barbed wire.

[00:11:06] Adam: Correct.

[00:11:07] Simon: To save them. And so, in the same way, like that doesn’t mean that police are the only, or even the best way to, to provide public safety. And I, I’m curious if you feel similarly about bail reform.

[00:11:18] If it, if it seems like locking more people up pretrial is, presented as basically the only public safety solution, right?

[00:11:25] Police and yeah.

[00:11:26] Adam: Yeah, because it doesn’t require any sacrifice for many people with money. Again, these are dehumanized populations already. Uh, They’re sort of seen as, existentially violent. Frankly, genetically violent. You know, there’s this myth that we have this socialist welfare state and it failed, right?

[00:11:39] Black people still have, are poor and there’s still gun violence. All the sort of runaway inequalities in inequities and, and ghettoization of black communities is seen as being we tried, we did a sort of welfare state approach.

[00:11:51] And of course this is a total myth, but this myth of an existing left wing status quo is central to their reactionary myth or the reactionary solution to that myth, which is we just need to lock up inconvenient or surplus populations because there’s no social intervention that’s gonna help.

[00:12:05] And it really doesn’t sort of matter how many studies you show saying that poverty is the biggest predictor of quote unquote crime. And also, by the way, locking people up pre-trial is a huge predictor of future criminality for fairly obvious reasons. once you begin to look at the studies, which is A) it disrupts people’s education.

[00:12:20] They have to drop out of school, high school or college, B) They have to quit their job uh, because they’re in jail. They can’t continue their job. It destroys social bonds. It puts extra burden on , especially black women, to sort of compensate for their family, which added stressors on child.

[00:12:32] You know, I could go on and on and on, right? By solving the underlying economic factors, you could really, really reduce crime.

[00:12:38] And this is the great paradox in of the United States, is that year after year after year after year for decades, we routinely have the highest murder rate, bar none. It’s not even close in one of the, if not the highest, In the so-called western world or kind of among rich nations how they measure that.

[00:12:54] But we also have the highest incarceration rate by magnitudes. It’s not even close. Roughly four or five x the, the global mean. Uh, We have 20% of the incarcerated population, but only 5% of the world’s population. So if incarcerating people created less crime, we should have the least crime by definition.

[00:13:11] But then of course we don’t. And then carceral liberals would throw in some line about, oh, we have more guns. But that’s not really true either cuz Canada has a lot of guns. They have comparable amount of guns that we have, so that’s not quite it either. There are larger existential issues with inequality, especially racial inequality in this country, that nobody really wants to deal with because it’s messy, it’s expensive,

[00:13:30] it requires us to tax billionaires more. And nobody really wants to do that. Nobody wants to address issues of systemic racism, redlining, shutting down schools , and rec centers and healthcare in poor communities. So we just do what we always do.

[00:13:43] We take the surplus population, we shove them in a box and we call it a day, and we put some liberal window dressing on it. People forget the sort of, now infamous, 1994 crime bill has 31 different mentions of community policing. This is another great kind of buzzword. Community policing. It was supposed to, you know, it had buy-in from a lot of black leaders because again, they were gonna pass it with or without them.

[00:14:02] And so what they said is they said, okay, if you wanna put your, your stamp of approval on this, crime bill, which and now of course the crime bill wasn’t the main driver of mass incarceration. It sort of, came after most states had already begun it, but it did cement it, it did codify it, it did make it sort of more normal and gave it a federal stamp of approval.

[00:14:17] But they said, we’ll throw in some things like, gun prevention programs. So they’ll sort of throw in some liberal window dressing, but ultimately the major carceral mechanisms have to be there. And the bail reform movement, which again, had some establishment buy-in in certain places.

[00:14:31] I mean, Governor Pritzker signed the most progressive version here in Illinois, was one of the rare kind of interruptions of that. But I think we now look back and see that as somewhat anomalous. That that was because crime rates were historically low. There was the Ferguson protest and a need to kind of placate those urban unrests that we saw in 2014 in Baltimore, 2015, and then of course George Floyd pretty much throughout the whole world. That there needed to be a bone that was thrown. That anger and resentment towards mass incarceration.

[00:14:57] And then the increased murder rates in 2021, sort of, gave the reactionary movement, something to look at and say, here you go.

[00:15:04] Simon: Yeah. And given that. I’m curious if you have any thoughts or ideas for advocates for pretrial reform to try to keep this cycle of seemingly endless rollbacks from repeating.

[00:15:18] Adam: I mean, it maybe it sounds a little pollyannish and liberal, but like, I think just explaining to people what bail reform is, like, I really think a lot of people really don’t know what it is. I’m just pulling numbers, you know, from thin air. I just feel like 80% of people I’ve talked to have genuinely are misinformed about what actual bail is supposed to do and what it does.

[00:15:39] And then when you explain it to them, and I’ve, I’ve seen this happen on social media a lot. I’ve seen this happen in personal conversations a lot. When you actually sit down and say like, no, no, no, bail’s not supposed to be punitive. These people still go to prison for many years. They go, oh, okay. . And they don’t know, that there’s always been bail reform for, you know, rich, right? Trump was out of federal prison the next day, right? He was arrested, he’s arraigned and then he was out. Uh, now I know federal prison’s different, but like rich people go in and out all the time.

[00:16:04] And there wasn’t a scare story about Trump going and recommitting crimes on the nightly news, even though he, was in and out. And by the way, again, as several have noted, you’ve noted the actual court date appearances are

[00:16:16] better under bail reform. Because the, again, the goal is to sort of get rid of the bad people off the street. When Bloomberg was at his most vulnerable, he would basically say, we need to get like black people between the ages of 16 and 23, like, off the streets as much as possible.

[00:16:30] I mean, that’s the argument people make, they’re making pre-crime arguments cuz they’ll say, oh, so-and-so commits a crime, but you know, he should have been in jail for this and that.

[00:16:36] I’m like, well, by that logic we should just lock up everybody.

[00:16:39] Right,

[00:16:40] Then there’ll be no, then there’ll be no crime. We should live under sort of a, a global prison.

[00:16:43] Simon: That’s the dream.

[00:16:44] Adam: Yeah, and that’s the sort of argument I, I found most effective. I think people have an intuitive sense that like locking people up before they’ve seen a judge or a jury or being convicted is just intuitively probably not good.

[00:16:56] And then you work backwards from there and sort of talk about why, you know, the US is unique in this. You know, several studies, shows that people who languish in jail for days, weeks, and years, that’s how they end up actually meeting other criminals to do more criminal activity.

[00:17:09] And you say, you know, this was the system we had for years while our crime rates skyrocketed so clearly it doesn’t really work. And then you, you sort of start from there. Because again, the, vast majority media is not really gonna explain what bail reform actually is.

[00:17:20] If I, I, if I had a nickel for every time someone says, and they were back on the streets, it, it again, it implies that they’ve suffered no consequences.

[00:17:27] Simon: Right,

[00:17:27] Adam: And they know that’s what it implies. And they know they’re lying and they don’t care.

[00:17:31] Simon: Right. and given you’ve sort of outlined some strategic things going forward that we can do to try to seize back the narrative, which I think are good. And I’m curious, just as we kind of wrap up here, what sort of, gives you hope that we can turn this, this around?

[00:17:47] Adam: I guess, I suppose I had a lot of hope three years ago and I have less hope now because I’ve seen how fast the reaction happens and how bipartisan it was and how cynical it was.

[00:17:58] And even these supposed liberal defenders of reform capitulated on at pretty much every turn. So, I’m hopeful that the people who are impacted the most by this and see the sort of meat grinder factory that is your average county jail.

[00:18:14] Cuz really I think every, every person in media and every elected official should be required by law to spend two days sitting in Cook County Jail or, or Manhattan County lockup and just watch how utterly mindless the meat grinder is. My hope is that they’ll just keep fighting and fighting against these forces and talk about, I mean, honestly, if Brandon Johnson’s victory in Chicago, but at least provide a model for how you can talk about crime in a way that’s proactive and holistic, which really did resonate with a lot of voters, rather than just mindlessly pushing the more cops button that Eric Adams did, that Johnson’s victory, which was pretty dispositive.

[00:18:49] Every one of these stories that says black voters, you know, if you poll them and if you tortured ’em enough and, and they’ll sort of say they want more cops. Because they’re concerned about crime. But then if you poll ’em and say, what are ways you want to address crime?

[00:19:01] Overwhelmingly, they say redistribute resources. They talk about good union jobs. They talk about universal healthcare. They talk about rec centers. They talk about good schools, redistributing wealth, prenatal and postnatal childcare.

[00:19:12] These things that we know impact quote unquote crime rates. If you can talk about ways where you can reduce violence and, and reduce the probability of quote unquote criminality by providing for people and funding the, forces of care rather than the forces of incarceration and violence,

[00:19:25] I think you could do it in a kind of non granola way you can do it in a way that sounds plausible and sounds realistic.

[00:19:33] So, I think it’s like people wanna hear about alternative visions that are concrete that really do address the issue and provide uh, economic safety and welfare for people, not just locking up surplus populations. Cuz I, I do think there’s a market for that both in the black and white, you know, quote unquote communities.

[00:19:50] Um, not rich people are never gonna like it, but, you know, that’s a different conversation.

[00:19:54] Simon: Well with that Adam, I think that’s a great place to leave it. Thank you so much for coming on. You got it. Thank you so much.

[00:20:02] And now I’m joined by Jared Trujillo, Policy Counsel with the NYCLU. Jared, thank you so much for being back. You are a, favorite here on Rights This Way.

[00:20:14] Jared: Thank you for having me.

[00:20:15] Simon: So we’re obviously talking about the latest changes that were made to bail this year. But, before I do that I’m just hoping that maybe you could do like a quick run through of what were the bail law changes that were made in 2019, and then what were the rollbacks to those both in 2020 and then in 2022?

[00:20:39] Jared: So, the purpose of bail by statute has always been to ensure that someone returns to court. And that money that someone has to pay is supposed to be paid in order to ensure that that person actually comes back. So what we had in New York is where rich people could pay bail and low-income folks could not pay bail because when you’re poor, even a $500 bail as was set for people like Layleen Polanco who died in custody, even a $500 bail might be something that you cannot afford. In New York we have some of the most dangerous jails and prisons in the country. The rates of violence at Rikers are eight times higher than the rates of violence at other jails in other cities.

[00:21:24] And so when courts set bail for people a bail that people cannot afford, it is effectively subjecting a person who is legally innocent to an incredibly dangerous and traumatizing environment on top of taking that person outta their community, outta their treatment programs, away from their job, from their housing, and making it more difficult for people to access childcare and education and everything else.

[00:21:49] So bail at its core is state violence that we do to low income people. Recognizing this, in 2019 the legislature passed the bail reform statute. And the bail reform statute made it so that people that were accused of misdemeanors, some quote unquote non-violent felonies., it made it so that courts weren’t able to impose monetary bail on those people.

[00:22:15] Now, that doesn’t mean that there were no conditions that could be set if this person was released at arraignments. The person could have supervised release. The person could have some type of electronic monitoring. There are a lot of different conditions that could be set.

[00:22:28] However, with the bail reform law in 2019, people effectively could not just be kept in jail who are legally innocent pending trial for some offenses solely because they couldn’t afford to get out. However, in 2020, in 2022, that protection was rolled back. More offenses were added where people would become bail eligible.

[00:22:54] That included theft in 2022. So, theft of something minor could mean that someone who was legally innocent would be kept in custody pending their trial.

[00:23:04] Simon: And then can you talk about, fast forwarding to this year, the changes that were made this time around in 2023?

[00:23:14] Jared: Sure. So, the changes made in 2023. The most significant change was to what’s called the least restrictive means standard. So, the idea of the least restrictive means standard is that when courts are determining what conditions to set to make sure that someone returns to court to fight the charges against them that they have to take the least carceral thing, the least disruptive condition, and set that for the person.

[00:23:38] So, if it is determined that someone needs supervised release, which are oftentimes court programs, in order to assure they return to court, then that’s a condition that the courts must set. If courts determine that the person needs a wake up call, electronic monitoring, and that is the least disruptive thing to set to ensure that person returns to court, then that is the condition that the courts must impose.

[00:24:01] And the least restrictive means standard is something that has existed for decades in New York. And it was codified in the law to really clarify what it meant. When the bill reform statute passed in 2019. With, with the 2023 rollbacks, that least restrictive means standard was eliminated.

[00:24:22] One of the governor’s reasons for the current round of rollbacks was to clear up confusion from judges. And this is not coming from NYCLU, this is coming from judges themselves, said that they were not confused.

[00:24:36] What this change means, you know, it doesn’t change a constitutional standard, but what it does mean is that judges will be more confused and because they won’t be guided by that least restrictive means standard by statute the way that they are now, it means that more low income folks are going to be put into jail that are legally innocent solely because they can’t afford to pay to be outta jail pending trial.

[00:25:02] We know, and this is something that the governor even said, is that bail reform cannot be blamed for an increase of crime. There is no evidence to suggest that bail reform is to blame for any increases in crime.

[00:25:16] And so this most recent rollbacks is just, It’s going to hurt individuals. It’s going to hurt low income and black and brown communities and it’s, it’s gonna hurt all of us as far as public safety and as far as trying to have a criminal legal system that’s a little bit less inequitable.

[00:25:31] Simon: You bring up the politics part of this Jared, which I, I kind of wanna bring in this quote here that I saw recently and, and wanted to get your take. This is a quote from Governor Hochul. She was explaining one of the reasons behind her desire to change the bail laws.

[00:25:48] And now I’m quoting, “there’s some horrific cases, splashed on the front pages of newspapers where they talk about individuals, where a judge and the defense lawyer say, following the least restrictive means, means you have to let this person out. And some of those cases literally shocked the conscience.

[00:26:06] You cannot believe they let the person out and they said, my hands are tied. I have to follow the least restrictive means. So, it was important to remove that to give the judges the clarity.” And that’s the end of the quote. What role do you think newspaper headlines and stories, which often included falsehoods or assertions that proved to be, you know, untrue or were played up, what role do you think that played in, in where we’re at with bail reform?

[00:26:36] Jared: Sure. So one of the most frustrating things with the way that the media has covered bail reform is that oftentimes, whether it be police or politicians on either side of the aisle, when they say things that are inaccurate, the media never calls them out. And so concerning what criminal statutes are bail eligible or not. They’re all there. And also they’re criminal defense attorneys, NYCLU, there’s so many other people that are always willing to let journalists know what the statute say and even point them to what the statute says.

[00:27:11] And so, it’s really disappointing that the media hasn’t called out a lot of the false narratives about the blood writing red. I mean, even in the legislature when they were debating whether to make this most recent round of changes, you have legislators saying that people are being killed and then the person who is accused of doing the killing isn’t bail eligible, which is just inherently false. That has never been the case. That wasn’t the case before the 2020 rollbacks, so it’s an issue that newspapers are not calling out falsehoods.

[00:27:44] It’s an issue that newspapers are perpetuating. It’s disappointing that newspapers aren’t really talking about the fact that media isn’t talking about the fact that bail reform has really improved public safety a lot.

[00:27:58] And, and then finally, I just wanna put this into historical context. Bail reform is one of the most significant civil rights victories that’s happened in New York’s recent history. It is a humongous civil rights victory to be able to make it more difficult for the Khalif Browders and the Layleen Polancos of the world to be put into jail while they’re legally innocent pending trial, simply because they cannot afford to pay their way out pending trial.

[00:28:26] However, there is a very long history of media being used to effectively roll back civil rights victories. To denigrate a lot of civil rights victories. Especially, when it comes to race. if we had a lot longer, I won’t go into law professor mode here, but you know, we could certainly talk about, you know, some specific examples.

[00:28:49] So, even following reconstruction, you had a lot of newspapers that were framing real white terrorism that was perpetuated on black and brown folks that were framing that as you know, they were calling the black folks brutes.

[00:29:04] They were effectively indicating that the black folks deserved it. This has happened for decades, and if you look at any civil rights victory that’s happened in this country. Right after the civil rights victory, there’s always this period of retrenchment. Whether it be conservative forces, whether it be the media, whether it be just, just any number of different players where they try to effectively push back on those advances. We see it with racial rights,

[00:29:32] we see it with LGBTQ rights with trans rights in particular. We’re seeing a lot of that right now. We’ve certainly seen that on Native Rights to the extent that this country’s ever really done native rights in a meaningful way. And this is just the latest iteration of that.

[00:29:46] You had a groundbreaking, monumental civil rights victory by passing the bail reform statute. It is really unfortunate that not all, but a lot of the media has been persistently helping pushback.

[00:30:01] Simon: And uh, there’s also, there’s another element here that’s troubling which is the process that led up to the latest changes.

[00:30:09] So, my understanding is there were very few people who really had any idea what the legislation rolling back bail would look like or what discussions were being had. You know, what was on the table, what was off the table, who was pushing back, who was, you know, pushing for what until very late in the process of negotiating the budget.

[00:30:31] Is that fair to say? And, just talk generally please, about like how opaque this whole process was.

[00:30:38] Jared: Absolutely. It took a very long time to pass the bail statute in 2019. It took years. And the voices of survivors, of survivors of the criminal legal system, of survivors of violence of public defenders and prosecutors and elected officials and grassroots organizations, and so many people coming together to actually pass the 2019 statute.

[00:31:01] Now, looking at 2023, the process of rolling that back was the complete opposite that you have groups like the NYCLU, public defenders, grassroots groups, even survivor-led organizations that were really shut out of the process almost completely. And so these groups, we didn’t even know exactly what the proposed language would be.

[00:31:25] We didn’t know the status of debate or of negotiation between the Assembly, the Senate, and the Governor, you know, the three entities that ultimately have to pass the budget. And we didn’t even have final language that the legislators would be voting on until less than a day before they had to actually vote on it. The state budget is hundreds of pages long and the fact that there is no meaningful opportunity for legislators to even go in front of their constituents and say, do these changes make sense? Do these make you feel safer? Do they actually conform to the data? Is this an actual policy change or is this a political change? There was no real opportunity, even for the NYCLU or other groups to be able to say, this change actually does this, this is an unintended consequence of this change, because the process was just so opaque. You know, there are a lot of issues with New York’s budgeting process, which again could take hours and hours and hours to talk about.

[00:32:28] But, the issue with bail in particular because you have such a significant civil rights statue and you’re rolling it back without a lot of the players that would be the most impacted by this having any input, that is undemocratic and New York can do just so much better.

[00:32:47] Simon: Yeah, I mean a absolutely, and, I think that process piece is so important cuz I, I don’t know, unless you’re a kind of legislative wonk or you’re following the papers very closely, you don’t totally know exactly how this sausage is, being made, or, more accurately, like how little is known about how this sausage is made even from people who are voting on the budget.

[00:33:09] So, as we sort of wrap up here, the last thing I kind of wanted to get your take on is, we’ve talked about the fact that these latest rollbacks are only one of three rollbacks that have happened. And I’m really curious to get your take on how we can turn the momentum around on this and, and protect and expand the rights of people who are, you know, it really is important to emphasize here in, in the conducts of bail, these are people who are innocent until proven guilty.

[00:33:40] Jared: Sure, I, I think there’s really a space for everyone to ensure there’s not further rollbacks, but also to ensure that the rights of people that are legally innocent, that have been impacted by the criminal legal system, that the rights are, are protected and that also we’re improving community safety.

[00:33:57] The most important thing is to just tell human stories and to remember that when we talk about legislation, we’re talking about real people’s lives. People know the names Khalif Browder, Layleen Polanco, and so many of the others that have been impacted by the criminal legal system. But those are just the names that you hear about.

[00:34:16] There are a lot of other people that have been impacted that you haven’t heard about. And when there are changes to the bail statute, it’s important to know that there are no minor changes. There’s no such thing as a technicality because everything that may sound like a technicality, that is someone’s brother, son, daughter, parent, that is someone’s community member, that is our neighbor.

[00:34:38] And you know, bail is something that happens at the beginning of someone’s criminal case. It happens when judges know very little about the person when the person might only be put in front of a judge for a few minutes before ultimately making this hugely monumental life-changing decision.

[00:34:56] But there are other parts of the criminal legal system that we need reforms to. So, the NYCLU is really invested in changes to the way that policing looks. AMBA’s invested in looking at the way that sentencing operates. You know, this year we celebrated the 50 year anniversary of the Rockefeller Drug Laws, which were just really harsh sentencing laws that effectively damned people and entire communities to really long and harsh prison sentences without having any public safety positive impact.

[00:35:27] And so really looking at rolling back a lot of the remnants of the Rockefeller Drug Laws. It is making sure that people that are incarcerated have actual access to rehabilitative programming, because someone who’s incarcerated today will probably be your neighbor at some point in the future and communities are much safer when people actually have access to rehabilitation and to treatment and to things that will make their reentry more successful.

[00:35:49] It’s looking at the way that the parole statutes operate. It’s looking at remnants of broken windows policing, whether that be for drug offenses or for sex work or for just many of the other ways uh, that people are trapped in the criminal legal system. And finally, it’s also recognizing that, you know, as Audrey Lorde said, people don’t live single issue lives.

[00:36:08] And so to really make the criminal legal system less inequitable, we also have to look at immigration. We have to look at the child welfare system. We have to look at homelessness and how we treat people that are unhoused. We have to look at mental health. We have to actually, if we want to be safer as a community, we need to really look at the ways that we’re treating people and to make sure that we have a comprehensive liberty focused approach.

[00:36:33] Simon: Right. And, one thing that people should know is that the NYCLU and Jared, we will be keeping up this fight and keeping you listeners posted on what’s happening on this front. Because there’s always something going on with, with bail reform.

[00:36:47] Simon: And with that, Jared, thank you so much for being on Rights This Way.

[00:36:52] Jared: Thank you.

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