The Justice Department Wades Into New York Bail Reform Fight With Federal Hate Crime Charges Over Slapping

Police and prosecutors want to maintain a system that punishes poor people before they’re ever convicted.

The Department of Justice is wading into the conflict surrounding New York's 1-month-old bail reforms by charging a woman accused of assaulting several Jewish women with federal hate crimes.

Tiffany Harris, 30, of Brooklyn, New York, has been trotted out by police and prosecutors who are critical of New York's new system, which, like nearby New Jersey, strives to eliminate the use of cash bail for misdemeanor and nonviolent arrests. Harris is accused of walking up to three separate Orthodox Jewish women in Crown Heights in New York in December and slapping them. In one incident she said "Fuck you Jews," so the attacks are being described as anti-Semitic hate crimes.

The facts of the case also present what seems to be a troubled woman who probably needs professional help, not somebody attempting to mastermind some sort of escalation of violence against New York City's Jewish community. Under New York's laws, she's been released without cash bail demands, and she's being held up (particularly by the New York Post) as proof that bail reforms are bad, because she continued to act out after she had been freed (and was eventually rearrested).

On Tuesday federal prosecutors got involved by charging her with violating federal hate crime laws by assaulting the women on the basis of their perceived religion. Richard Donoghue, U.S. Attorney for the Eastern District of New York, announced the charges, along with an FBI official at the New York field office and New York City Police Commissioner Dermot Shea. Yes, they brought out all these big guns to announce federal charges against a woman who slapped three people. There are even quotes and a press release:

"As alleged in the criminal complaint, the defendant attacked three women solely because they were Jewish, striking not only at the innocent victims, but also at our country's founding principles of tolerance and respect for civil rights," stated Donoghue. "The use of violence, or the threats of violence, against anyone based on the victim's religion will not be tolerated, and those who engage in such conduct will learn that under federal law there are serious consequences for hate crimes."

They noted that Harris faces up to 10 years in prison if convicted (in reality, under federal sentence scheduling, she'll receive far less). After suggesting Harris' alleged assaults potentially undermine the country's foundation of civil rights, they added that she's presumed innocent until proven guilty.

Those who attack bail reform want to downplay that "presumed innocent" part, but that's what's important and that's exactly why the shift away from cash bail has been happening. Harris hasn't been convicted of a crime. Those who are outraged over her release are the ones presuming her guilt. They are angry that she's not being punished and put behind bars even though she has not yet been convicted.

Shea inadvertently gives up the game by blaming bail reform for a recent spike in crimes in New York City since the start of the year, without providing any evidence that the people responsible for the crimes are those who have been released without bail:

"In the first three weeks of this year, we're seeing significant spikes in crime. So either we forgot how to police New York City, or there's a correlation," Shea told reporters in reference to the new laws.

"If you let out individuals that commit a lot of crime, that's precision policing in reverse and we're seeing the effects in a very quick time, and that is why we're so concerned."

Note the assumption of guilt in Shea's quotes. He's acting as though these people who are released without having to pay bail have been convicted. They have not been. What police and prosecutors are demanding is the ability to be able to punish people by holding them in jail cells prior to proving they committed a crime.

That's not what bail was supposed to be for. Cash bail was intended to make sure that people who have been charged with crimes show up at court and have financial incentives to stay out of trouble while they're free. It's not supposed to be a tool to use money to determine who goes free and who is jailed on the basis of who has access to money and who doesn't, yet that's exactly what's been happening and why activists have been pushing for reform.

As I've noted previously, New York City actually significantly reformed bail decades ago to dramatically reduce the demands for cash bail in the city and continued to see crime fall. It's actually outside of New York City where these changes will have the most impact.

Among those who are horrified that Harris' case is being used to attack bail reform is one of her own alleged victims. Elyse Maister spoke to the New York Daily News earlier this week and expressed dismay about what's happened in response to the incident. She was walking home from a Hanukkah party on December 27 when Harris allegedly ran by and slapped her on the back of the head. Maister told the Daily News that Harris seemed "emotionally distressed" during the brief encounter. And while Maister does believe there is a real fear of violence against New York's Orthodox Jews, she thinks the Harris case is being politically exploited.

"I've been dismayed to watch politicians exploit what happened, to use it against bail reform. I want [Harris] to get treatment and not be subject to money bail," she told the Daily News.

Actions of some sort need to be taken to make sure Harris doesn't continue to assault people. Federal charges for slapping three women is a disproportionate response.

Comments

[Longtobefree]

What part of non-violent is slapping?

[Diane Reynolds (Paul.)]

Everyone made it home to their families.

[Quixote]

This is an issue we've been discussing in several seminars here at NYU, where many have pointed out that certain "non-violent" forms of combat practiced behind the shield of a computer screen, can be far more dangerous than actual physical slapping. It is submitted, in fact, that illegal "parody" being a crime that threatens the very cohesion of our society, those suspected of engaging in it should, immediately following their arrests, be incarcerated without bail for as long as possible. We are hoping to get this important exception written into the current bail statute, so as to build on the special legal advances that we managed to secure during the litigation of our nation's leading criminal "satire" case. See the documentation at:

https://raphaelgolbtrial.wordpress.com/

[SIV]

strives to eliminate the use of cash bail for misdemeanor and nonviolent arrests

They've eliminated cash bail for (some) violent crimes. The bail reforms are bad. Why are you even arguing for this?

[Eddy]

"strives to eliminate the use of cash bail for misdemeanor and nonviolent arrests"

Doesn't the presumption of innocence apply to felonies? And to violent misdemeanors?

[Robert]

The Department of Justice is wading into the conflict surrounding New York's 1-month-old bail reforms by charging a woman accused of assaulting several Jewish women with federal hate crimes.

Am I the only one who sees this headling and summary introduction as non sequitur, and has failed to find evidence of it in the article? How does charging this person with federal hate crimes involve the US DOJ with local bail reforms unless you're making the argument for them that bail reform's a bad thing because it leads to such outcomes?

[Robert]

I intuit that Mr. Shackford's taking the attitude of "Whose side are you on?" rather than what are you for or against. Funny, because I thought when it came to campus rape accusations, he'd deplored that type of thinking.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The implication is that, absent the bail reforms and this accused woman being re-arrested, the big guns would not have been trotted out. Cops and prosecutors in NYC, local and federal, have made no secret of their dislike of bail reform.

[Robert]

I thought the slappings were the cause of the 2nd arrest, which means the hate crime charge wasn't being withheld from the original arrest. Do I have her alleged offenses in reverse order?

[TripK2]

I wasn’t even aware hate crimes could be used to assault people.

[Diane Reynolds (Paul.)]

In one incident she said "Fuck you Jews," so the attacks are being described as anti-Semitic hate crimes.

This is a tough call. I need to know where everyone sits on the social justice hierarchical totem pole before I can make a judgement.

[squid_hunt]

Exactly. If you want to argue that hate crime laws are stupid, I'm with you. If you want to argue that this one is too simple to be a hate crime law, I have to disagree. The question is whether motive affects the seriousness of the crime. Keep the argument there.

[John]

I completely agree. This is clearly a hate crime as defined by the law. Shackford seems unable to separate his objection to the law and an honest assessment of its application to these facts.

[squid_hunt]

Only government can violate civil rights.

[Unicorn Abattoir]

So if I block you from voting, I'm not violating your civil rights?

[Eddy]

Isn't the 8th Amendment's ban on "excessive bail" a key bail reform? Maybe focus on enforcing that with regard to poor defendants before abolishing bail altogether.

Abolishing bail also abolishes the right to reasonable bail, in those cases where the "reformed" system decides the accused should be locked up. And it also abolishes reasonable bail in cases where maybe the accused should be bailed.

[Billy Bones]

Not unlike an earlier Reason article (Georgia death row inmate), this is not an entirely sympathetic case. I hold steadfast for bail reform, but after being released after the previous assault, she committed THE EXACT SAME CRIME (presumably). I have no issue with her being denied bail until her trial. But she could have also done the exact same thing had she been required to pay bail the first time, so this is definitely not an exemplary example against bail reform.

With all that said, I am so tired of this "hate crime" bullshit. When every crime is a "hate crime", then no crime is a "hate crime". I could effectively argue that any crime committed contains some amount of hate. "You robbed Wells Fargo because you like Bank of America and hate Wells Fargo". It's all bullshit, end stop.

[Geraje Guzba]

If she paid bail, and committed the same crime again, she would have been hauled in to the jail and more than likely forfeited her bail. Having some skin in the game changes people's behavior. Hitting people right in the pocketbook is a good way to deter criminal behavior.

[John]

Bail reform has proven to be a disaster. It deprives victims of crime of any real justice and turns pretty criminals back out into the public to continue being criminals. Thanks to bail reform, it does no good if they find the person who stole your car or assaulted you. They will just book them and turn them lose that night.

I was receptive to bail reform. I thought it was a good idea. The facts have shown otherwise. It was a terrible idea. Reason does itself no favors by refusing to admit its mistakes or change its views when confronted with data showing them to be wrong.

There is nothing strictly libertarian about bail reform. There are just as many libertarian interests in a functioning justice system that protects the public and victims of crimes as there is for ensuring that the justice system doesn't punish innocent people. A system that turns the guilty lose and refuses to protect the public can be just as unjust and contrary to freedom as a system that punishes the innocent. So, there is no reason why reason should not be willing to fairly examine this policy.

[TripK2]

I’ll change my mind on bail reform once we get the right to a speedy trial.

Until then, fuck bail.

[Geraje Guzba]

Why? If you comply with the law, and make all necessary appearances, and are innocent, you get your money back.

What's the problem?

[TripK2]

People often have to come up with 10% of their bond. That means poor people often can't post bail while middle class and rich people can. Since we are always denied our constitutional right to a speedy trial, this is a major issue.

That's the problem.

[Geraje Guzba]

So?

Rich people can afford nice houses. Poor people can't. Rich people can afford a sirloin steak for dinner every night, while poor people have to eat dollar store ramen noodles.

The disparity between rich and poor is not any more a reason to eliminate bail requirements than it is a reason to give everyone free shit.

[TripK2]

You think the application of justice should be similar to the distribution of resources based on utility in the market?

You're arguing that we should treat certain people differently under the law based on how much money they have. I'm not surprised people on your side of this issue are losing.

Most Americans want the rich and poor to be treated equally under the law.

[Geraje Guzba]

You are missing the point and, in the process, mischaracterizing mine.

Eliminating bail in its entirety for a wide class of crimes, violent and non-violent alike, does nothing to address disparities between the rich and the poor. It is a one-size-fits-all sledgehammer "solution" for a problem that requires a scalpel and a great deal of nuance.

If somebody that is indigent is accused of committing a relatively minor crime, a judge should have the discretion to take all the circumstances into account, including the facts of the alleged crime, the likelihood of a repeated offense, as well as the character and the financial stability of the accused.

On the other hand, simply releasing *everyone* accused of any in a series of delineated crimes permits for the release of those who can afford bail as well as those who cannot. At the same time, bail reform as enacted in NYS mandates the release of people that would otherwise have been detained without bail, regardless of their economic circumstances. Being rich should not be a ticket out of jail, but neither should being poor, in and of itself.

//You’re arguing that we should treat certain people differently under the law based on how much money they have.//

Not being able to afford bail should not be the overriding consideration. An indigent criminal defendant is capable of being unrepentant and utterly dismissive of the judicial process - they are also capable of being dangerous.

//Most Americans want the rich and poor to be treated equally under the law.//

NYS bail reform does not achieve this goal.

[TripK2]

Like I said, once we guarantee the right to a speedy trial, I'm fine with everything you said here.

Until then, fuck bail because, in practice, it lets the rich go free while the poor sit in jail even though the two may have committed the same crime. The only difference is one is rich and the other is poor.

[Geraje Guzba]

Again, being poor -- in and of itself -- should not be the primary consideration in deciding whether bail is appropriate or not. A poor criminal with no respect for the law -- or for property rights, or for the rights of other people to be secure, or the judicial process -- is no less dangerous on account of their poverty.

[TripK2]

Once we have speedy trials I'll be on board with all the nuance you bring to the table. Until then, fuck bail.

People see the injustice of the current system, and until its been at least somewhat fixed, it will be impossible for my side to come to an agreement with yours. The solutions will only get more extreme and less nuanced the longer the people are ignored. This tends to happen when you have a justice system that oppresses people, particularly large segments of the population that have ample manpower and ample votes.

We're going to make a lot of noise and you're going to hate it.

[Nardz]

"Once we have speedy trials I’ll be on board with all the nuance you bring to the table. Until then, fuck bail.
People see the injustice of the current system, and until its been at least somewhat fixed, it will be impossible for my side to come to an agreement with yours. The solutions will only get more extreme and less nuanced the longer the people are ignored. This tends to happen when you have a justice system that oppresses people, particularly large segments of the population that have ample manpower and ample votes.
We’re going to make a lot of noise and you’re going to hate it."

Cool.
We'll just go with summary execution then.
If being too poor means one can't bear the burden of personal responsibility, then they're really no different from a stray dog who bites people.

Pro tip: I can see your point about linking speedy trials and bail standards. I can be convinced to get on board with some kind of reform.
But your Marxist reasoning is going to make an opponent, not an ally, of me.
Your argument is a failure.

[Nardz]

"I’ll change my mind on bail reform once we get the right to a speedy trial.
Until then, fuck bail"
^Legitimate argument.

"Until then, fuck bail because, in practice, it lets the rich go free while the poor sit in jail even though the two may have committed the same crime. The only difference is one is rich and the other is poor."
^Marxist bullshit

Don't undercut a legitimate position by using the worst possible reasoning to get there.
The accused's financial situation has no bearing on the crime committed. It does have bearing on the flight risk, with either or simultaneously positive and negative correlation depending on circumstances.
Bail should be set based on all factors involved: nature of the crime, flight risk, financial circumstances, etc.
But it is not a legitimate argument that bail is harder to post for the poor vs wealthy. That's the same logic that leads to decriminalizing theft under $X and shitting on the street.
Don't go full San Francisco

[TripK2]

I disagree. The justice system is a government system, we shouldn't treat it like its the free market.

You're just too deep into your ideology to think about this clearly.

[Nardz]

"You’re just too deep into your ideology to think about this clearly."

No, that would be you.
I led off the comment by declaring openness to your position. I followed up by describing how your argument for it is flawed.
Your response is to throw a little temper tantrum.
Well fuck off, because you're not convincing anyone that way.
Were I a fellow advocate, I'd tell you to shut the hell up because you're actively harming your cause.

[Geraje Guzba]

The problem with the way bail reform has been structured in NYS is the absurd number of demonstrably violent crimes that have been included within a list of crimes for which immediate release is mandatory.

Pot? Graffiti? Theft of services? Fine.

But arson? Assault? Resisting arrest? Strangulation? Endangering the welfare of a child? Really?

The problem is not the idea, in itself, but the breadth and implementation - which has been disastrous.

[Metazoan]

Is arson really not a felony? Likewise with strangulation, which seems like some kind of aggravated form of assault?

But the others--especially "resisting arrest"--seem reasonable to not have cash bail.

[Geraje Guzba]

Arson is a felony. As are many crimes on the expansive list for which bail has been eliminated. But these crimes, many of which ARE felonies, are considered "non-violent" under a bizarre new definition where anything short of outright murder is an acceptable level of violence, apparently.

As to your second point, it seems that bail should be set for those individuals that resist arrest. The person most likely NOT to show up, I think, is the person that did not surrender to the police in the first place. Why are they given the benefit of doubt that they will comply with the judicial process moving forward?

The guy who runs from the cops is probably not the best person to let loose on the streets with the expectation he'll show up to court.

[Metazoan]

To the first, I agree it is ridiculous that arson is considered nonviolent. That makes no sense.

To the second, I would agree, but I don't trust LEOs to not just arbitrarily apply the charge.

[Geraje Guzba]

The response in the latter scenario is a civil litigation (which many civil rights attorneys are willing to undertake) or a modification of the elements necessary to carry the burden of proof on a resisting arrest charge. The one-size-fits-all approach in NYS is throwing the baby out with the bath water.

[Metazoan]

I agree that is preferable (especially coupled with an elimination or drastic reduction in qualified immunity). However, until those reforms emerge, police are largely unaccountable, and no cash bail for resisting arrest becomes the second-best option.

[Nardz]

"However, until those reforms emerge, police are largely unaccountable, and no cash bail for resisting arrest becomes the second-best option."

It really doesn't.
Where's the motivation to fix the actual problem if the consequences for it are mitigated?
That route leads to more misconduct, as resisting arrest and police misconduct both become more likely

[Nardz]

"To the second, I would agree, but I don’t trust LEOs to not just arbitrarily apply the charge."

Agreed.
The problem is bail elimination doesn't address police misconduct.
It may occasionally mitigate it, but that's purely coincidental.
The problem is an improper charge of resisting arrest, not the existence of bail.

[fafalone]

Not sure about NY specifically but a lot of places, resisting arrest is very minor resistance, if you actually take off you get hit with a more serious flee/elude charge, or resistance with violence charge. Most resisting arrest charges are pulled your arm away while being cuffed or resisting the officers boot with your face.

Assault, people get confused by right wing media. Only misdemeanor assault, like a slap, with no serious injury, qualifies. If there's serious injury or a deadly weapon is used, it's a violent felony not eligible under the reform. Arson is only a nonviolent charge if it's strictly a property crime. Child endangerment is putting at risk, not actually harming, a child.

If you're on release for a felony and are rearrested, no longer eligible. Multiple FTAs, ineligible.

[Metazoan]

Arson is only a nonviolent charge if it’s strictly a property crime.

Isn't arson inherently dangerous to people? I guess you could make the argument that arson of, say, an abandoned building didn't hurt anybody, but then you'd have to concede the same for conspiracy to commit any of a number of crimes.

[Geraje Guzba]

//Assault, people get confused by right wing media. Only misdemeanor assault, like a slap, with no serious injury, qualifies. If there’s serious injury or a deadly weapon is used, it’s a violent felony not eligible under the reform.//

http://longisland.news12.com/story/41538364/mandatory-release-list-for-bail-reform-law-includes-assault-manslaughter

Take a look at the crimes. Then let me know if you still think it's "ring wing media."

[Nardz]

Now do vehicular manslaughter

[John]

That is a fair point. But even the non violent crimes ought to be a one shot deal. If you have been released without bail on one crime and you are picked up again, you ought to have to make bail. It is absurd to say that someone can commit as many crimes as they want and always be released provided the crime isn't serious enough.

[Geraje Guzba]

I agree. Typically, if an accused makes bail, and then commits another crime during the period of their release, they forfeit the bail (in addition to being charged with another crime). The prospect of losing money is a powerful incentive to behave. If your family puts up the money, then they also have an incentive to keep you in check.

The presumption of innocence has nothing to do with it. Even murderers are presumed innocent. No bail for accused murderers? Sure ...

[Robert]

Wait a minute — you saying they forfeit the first bail without being convicted of the second crime? Just the accusation is enough?!

[Gray_Jay]

What I've seen, and I've haven't worked that much with criminal law cases, is that after the judge in the second case gets a crack at setting bail/pretrial confinement/other conditions, the judge or magistrate who issued the bail in the first case will sometimes reexamine whether the bail set in the first case was appropriate. This can involve dismissing the bail requirement in the first case---if the second case is such that the defendant is likely to be in jail anyway, raising bail in the first case if the second case makes it likely the defendant won't show up at all, or just leaving it alone.

The primary purpose of bail is to compel the attendance of the defendant at trial. If the defendant is going to attend trial regardless, because they're already locked up, say, then bail isn't going to be needed. Pretrial confinement is sometimes needed to prevent further anticipated harm caused by a defendant.

[Geraje Guzba]

Yes.

Believe it or not, it is not that hard to NOT get arrested. It also should not be hard when you have been released with charges pending.

The notion that people are routinely falsely arrested for anything and everything under the sun is largely make believe. Most people that get arrested repeatedly are, in fact, criminals.

[TripK2]

Luckily, everything is a crime.

[Geraje Guzba]

Many things are crimes that, arguably, should not be. But many things are rightfully delineated as crimes and it makes no sense to lessen the consequences of committing those crimes as a misguided humanitarian protest against the existence of lesser crimes.

This is a classical case of throwing the baby out with the bath water. The system is flawed in many material respects, and it requires specific solutions. The Nazis were bad but bombing Dresden did not end the war, so to speak.

[TripK2]

Godwin's law is alive and kicking, I see.

I'm not sure what NYS is doing specifically (I didn't read the article), but I am for completely tearing down the justice system and rebuilding it based on the constitution. We need a complete rebuild.

[Nardz]

Then inform yourself instead of relying on vague impressions and labels.

[Metazoan]

I agree re: one shot deal.

[fafalone]

It is for felonies. Which is reasonable. Rearrest while out on felony means bail or remand. Fox News and The Post didn't mention that?

[Gray_Jay]

"Rearrest while out on felony means bail or remand. Fox News and The Post didn’t mention that?"

Really? Tell that to the guy that went right back to robbing banks the same day after he got arrested for robbing one. https://www.dailymail.co.uk/news/article-7909089/Serial-bank-robber-released-NY-bail-reforms-carry-two-heists-FINALLY-detained.html

[Geraje Guzba]

Only in New York City is letting black people terrorize and rob other black people without consequence considered a gift to the black community.

Listening to progressives wax poetic about the issue one gets the impression that NY Democrats sincerely believe that blacks enjoy and relish crime. It's absurd.

[Robert]

Although Reason doesn't take official positions, many stick out fairly obviously, and it does seem they changed their mind about private prisons, which they promoted in the 1980s but opposed by the turn of the century or so.

[Geraje Guzba]

//What police and prosecutors are demanding is the ability to be able to punish people by holding them in jail cells prior to proving they committed a crime.//

No.

What police and prosecutors are demanding is that people accused of committing violent crimes are pressed with an incentive to comply with the judicial process rather than running off to commit more crimes. Harris is a perfect example.

[Metazoan]

Or, alternatively, coerced into confession in a plea deal.

[Geraje Guzba]

I don't follow.

[Metazoan]

My point is that indefinite pretrial detention combined with the threat of charge-stacked decades in prison is a strong incentive to plead guilty, even if you are innocent. This seems to be forced confession in every way except name.

[Geraje Guzba]

I don't see pressure to agree to a plea deal as coercion. Like anything else in life, defending oneself against allegations of criminal conduct is a process of negotiation. Prosecutors in many instances are more than willing to let an accused plea to a lower charge so that they don't have to go through the hassle of a trial. This is benefit to criminal defendants that many do not necessarily deserve.

The reality is that most people that are arrested actually committed the crime with which they are being charged. The exceptions, for obvious reasons, make for better headlines. The narrative of the innocent languishing in jails for crimes they didn't commit is more or less a fantasy.

[Metazoan]

I agree that the plea deal is actually a benefit for guilty people. But it effectively acts as a punishment for demanding a trial. Couple that with being able to indefinitely detain someone before trial, and it becomes a very convenient way to extract convictions/confessions, just to end the indefinite detention.

The reality is that most people that are arrested actually committed the crime with which they are being charged

I don't know about this. I am especially doubtful of it at the federal level though, where crimes are ill-defined and sentences are extremely harsh.

[TripK2]

Prosecutors in many instances are more than willing to let an accused plea to a lower charge so that they don’t have to go through the hassle of a trial.

True, prosecutors typically don't want to go through the hassle of a trial, so they pressure people to take plea deals. If the accused won't take the deal, the prosecutors stack up charges to deter people from exercising their rights. Combine this with the over-criminalization of every day life and the rather extreme penalties we met out and you end up with the highest incarceration rate in the developed world.

Its very profitable for certain groups of people and luckily there are a lot of naive people they can trust to support them.

[Geraje Guzba]

In an "ideal" world, where everyone accused of a crime was put to a trial as swiftly as possible, more than 90% (which is around the average rate of conviction at trial) would be serving prison sentences of a far, far longer duration than what they would otherwise be serving if they took a plea deal.

The general rule is that people that are tried are almost always convicted. The plea deal is a boon, not a bane to criminal defendants.

[Metazoan]

The idea is that overcriminalization would be too difficult in such a scenario. There wouldn't be enough prosecutorial resources to try everyone, so either the conviction rate would go way down or the number of people being charged would go way down.

[Geraje Guzba]

Perhaps. Or, perhaps to the contrary, such a society would recognize the need for armies of prosecutors and establish a program, like the early Soviet NKVD, that recruits young men and women into its ranks straight out of high school.

I will take the transactional approach to criminal prosecution any day of the week over one which requires a trial in all instances. A society where you can bargain away your crimes may seem unjust on its face but it far preferable to one where everyone must hang for their transgressions.

[Nardz]

"Its very profitable for certain groups of people and luckily there are a lot of naive people they can trust to support them"

Specifically lawyers, 80% of whom vote D.

Plea bargain reform is a must. It's where the majority of abuse occurs, both under-sentancing the guilty and entrapping the innocent.
It is only of minor relation to bail reform, and, again, only likely to be perpetrated or get worse by addressing bail instead of plea reform

[Gray_Jay]

You already have that kind of coercion, pre trial detention or not. The deal the prosecution offers is going to be one hell of a lot nicer than what they'll ask the judge for if you make them go to trial. Any defense counsel worth their salt is going to tell the defendant their estimation of their odds at trial---a jury can and will do anything---and may very well tell their client that on an armed robbery with a firearm charge, pleading to grand theft, with 6 months jail (which may have already been served, depending), 6 months community supervision, and a small fine beats the living fuck out of the 2 times out of 3 they'll be found guilty of armed robbery and have to do 10 years in state prison + 10 more on the firearm mandatory enhancement charge. Even if the defense counsel, the defendant, the cops, and the ADA trying the case all know there's some chance it was his buddy who did it, and not him.

(This doesn't constitute 'coercion' evidently. I still think 'legal ethics' is a contradiction in terms, but whatever.)

There already is coercion in our system, is all I'm saying.

[Metazoan]

I agree it's not only about pretrial detention. It's mostly the plea bargaining itself. But I think there are cases where the prosecution uses the pretrial detention as an extra helper. The case of Maria Butina seems to be an example.

[Gray_Jay]

Sure. Pretrial detention is another way to get leverage over a defendant. Most people can't afford to spend however long it takes in jail while their case makes its way through the system, and may very well decide that pleading to something now, beats sitting in jail for 1-2 years or more. Bail helps with that.

Butina's case on its face shouldn't be thought of as the norm. Federal time, 18 months sentenced, out in 5? That's just weird. I thought 85 percent of the time sentenced was the rule of thumb with federal sentencing?

AIUI with federal charges, they're tough to beat, and the game with a good federal defense counsel---assuming convincing the jury you didn't do it is off the table---is to induce the AUSA to charge a less serious crime than the max possible, as well as bring in every downward deviation or variance possibility on the time and fine. 'My defendant's actual criminal history isn't as bad as the formula would make you think, for A, B, C, reasons, and s/he should have 2 points instead of the 8 on their sentencing sheet." Etc...

[Metazoan]

I realize Butina's case is unusual for a variety of reasons, but wasn't the sentence carried out pretty normally? She was jailed in July 2018 and released in October 2019 (so presumably, credit for time served). But, as another example, the guy who helped Ghosn escape (I forget his name) has also spoken out about the same sort of coercion. They're anecdotes, but it really wouldn't surprise me if that was

[Metazoan]

ugh, hit reply too soon. It wouldn't surprise me if that turned out to be very common.

[Gray_Jay]

Well, there actually is no-shit coercion in the Japanese criminal justice system. They don't get their conviction rates without a LOT of coercion including beatings, sleep deprivation, etc... The Japanese system is not one to envy, or to model the American criminal justice system after. Although their procedures on capital punishment are darkly hilarious. Imagine only knowing the hour of the execution one hour ahead of time? Though, let's be honest, they had to have executed a higher percentage of not guilty convicts, than here.

You mentioned it above, but judicial resources is a big reason behind the move to plea bargain to lighter sentences, and reserve the big guns for a defendant who actually wants to go to trial. There's a considerable deterrent effect to exercising one's right to trial there, though I'm not convinced it's totally a bad thing. The State simply can't afford to try more than a tiny fraction of the criminal trials it conducts. Decriminalization/legalization of drugs isn't going to help that as much as we'd like.

[Nardz]

"Federal time, 18 months sentenced, out in 5"

I don't know how it is federally, but interning for a lawyer in GA, sentencing was set up weird. It was commonly "10 years, to serve 3; 6 years, to serve 2; etc" - the smaller number was the real sentence, but it could grow to the larger based on certain conditions while serving.

[Gray_Jay]

Well, there's indeterminate sentencing, where a given offense has a range of potential periods of confinement; and there's the amount of time a convicted prisoner serves in practice, with good behavior reductions, and parole. They aren't the same.

This is for state criminal systems, incidentally. The Feds have their own deal, where typically a prisoner serves at least 85 percent of the sentence, and until recently there was a very mechanistic way of calculating the sentence for a crime.

Example: In Texas, a Model Penal Code state, Murder is a 1st degree felony, punishable by a period of confinement of between 5 and 99 years in prison. How does the court decide where in the 5 to 99 range to sentence? That's where the sentencing part of the proceedings comes in, where pretty much everything under the sun---including evidence ordinarily excluded by the rules of evidence---may be used to determine a sentence.

But it's indeterminate. Let's say the crook is a shitbag, who shoots a gang member while doing a driveby, and let's say the crime doesn't qualify for capital murder. He gets sentenced to 80 years upon being found guilty. He gets credit for whatever pretrial detention he served. He may be able to accumulate good behavior time to reduce his sentence. He might be eligible for parole after a certain portion of his sentence is completed. All of which may combine to turn that 80 year sentence into something like 25-30 and out. Which is probably what your lawyer was referring to.

[SIV]

"Bail reform" and abolishing capital punishment justify vigilantism.

[Gray_Jay]

"“Bail reform” and abolishing capital punishment justify vigilantism."

I don't know that it justifies it; I'm just saying that's what's going to happen if the State insists on not prosecuting malum in se offenders. The guy who catches two dudes breaking into his store or house is not going to be as likely to call the cops to take care of it, if he knows that the cops are just going to cite the guys and let them go. He can't be at his store 24/7 to watch his stuff, and now the bad guys know there's something worth stealing.

We don't want to live in the world that will result.

[Geraje Guzba]

Well said.

The flawed notion underlying the entire bail reform debacle is that criminals are victims of society without agency and it is society, therefore, that must bear the brunt of their criminality.

And, there is of course the obligatory racial angle.

Progressives in New York are more or less operating under a twisted reparations-like paradigm. In other words, blacks should be permitted to commit crimes with as little interference from law enforcement as possible because interference disproportionately affects blacks and, therefore, blacks "deserve" the benefit of trying to profit from crime as a repudiation of the system; a shucking off of hundreds of years of white oppression.

It's warped, and insane, but this is generally the philosophical under pinning of inane policies like bail reform.

[Gray_Jay]

"Progressives in New York are more or less operating under a twisted reparations-like paradigm. In other words, blacks should be permitted to commit crimes with as little interference from law enforcement as possible because interference disproportionately affects blacks and, therefore, blacks “deserve” the benefit of trying to profit from crime as a repudiation of the system; a shucking off of hundreds of years of white oppression.

It’s warped, and insane, but this is generally the philosophical under pinning of inane policies like bail reform."

Ten years ago, I would have thought the above was complete bullshit out of something like Stormfront. That instead it was attributable to a very Pollyanna-ish way of viewing that world that criminals were products of their society, lacked much individual agency, and instead needed guidance and a second chance. There isn't any racial redress in that worldview.

Now? I can't dismiss the idea out of hand that a desire for racial strive and redress, motivates a lot of these prison reform proposals. They have to KNOW what the end result of these policies is going to be. We lived through it in the late 60s through the early 80s. I'm not as willing to assume well-meaning ignorance anymore on the part of reformers.

[Geraje Guzba]

In part, there is a similar line of thinking in progressive circles with respect to drug dealing. Briefly, the argument is that the legalization of marijuana in NYS should not move forward since it would adversely impact the financial stability of black men. Alternatively, if legalization occurs, race based economic and financial assistance should be given to blacks, over anyone else.

So, either keep it illegal and allow the criminal element to flourish, or make it legal ... but viable financially only for blacks.

I think there was actually quite a number of prominent articles published not too long ago arguing exactly this.

Progressives are very much animated by the soft bigotry of low expectations. The notion that blacks are responsible individuals with agency, ambitions, and a desire to live productive lives is truly a foreign concept for many leftists.

[Marshal]

Those who are outraged over her release are the ones presuming her guilt.

The underlying principle is that only a guilty verdict proves guilt. But this is nonsense, she's on video. Nobody is presuming, they are judging based on available evidence.

People seem to pick from a list of agreed-to-exist outrages and try to shoehorn them into every circumstance [you didn't test the DNA! (even though there's no reason to believe the sample came from the perp)], [you didn't even test the rape kit! (even though the dispute is consent so the DNA source is not in dispute)].

This gives writing (and lawyering) a paint-by-numbers feel similar to politics where any disagreement results in charges of racism / sexism / homophobia because facts don't matter, accusations do.

[John]

There is factual guilt and there is legal guilt. Legal guilt is when the government proves your factual guilt beyond a reasonable doubt in a court and can then send you to jail. Factual guilt is whether you actually did it. And people can conclude you are factually guilty before you are proven legally guilty.

The distinction between factual guilt and legal guilt is one of those things that dim wits like Shackford have a hard time understanding.

[Geraje Guzba]

Precisely. Well said.

[$park¥ is the Worst]

The facts of the case also present what seems to be a troubled woman who probably needs professional help

This country needs more asylums.

[Gray_Jay]

Agreed.

The Left should be in favor of them too. It's a great camels-nose-into-the-tent for socialized medicine. It would also inevitably be another gigantic state and federal bureaucracy for rewarding friends with construction, maintenance, and supply contracts, and an endless stream of jobs.

I don't like all of that, but I think it's a service that in our world, not Libertopia, can only be done by the government. And I think we don't do very well currently without it.

[Longtobefree]

Of course, this is New York, so any attempt to use logic is doomed to fail.

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