As New York joined a handful of other states in passing sweeping criminal justice reforms, one of the state’s top prosecutors helped attorneys and legislators find loopholes to subvert laws intended to end money bail and guarantee speedy trials.
In April, New York Democrats, who controlled the governorship and both legislative branches, passed measures that reduced trial delays, curbed the practice of asset forfeiture and required prosecutors to immediately disclose evidence to suspects. Lawmakers also voted to end cash bail for most misdemeanor and nonviolent offenses and, instead of arresting people who didn’t show up for court, police would issue fines and tickets after Jan. 1, 2020, according to the Times Union.
Police unions, prosecutors and “law and order” advocates fought the reforms tooth and nail, contending that it would turn New York streets into “the purge.” Since the law passed, Jed Painter, an assistant district attorney from Nassau County, has been going around the state giving a presentation that teaches district attorneys how to subvert the new legislation. The New York Prosecutors Training Institute (NYPTI), the training arm of the District Attorneys Association of the State of New York, even offered the lesson as a podcast, according to City and State NY.
Since the law states that police can’t arrest someone for violating bail until they haven’t shown up for 30 days, Painter essentially suggested that the prosecutors wait until suspects were arrestable before contacting them, ensuring that citizens would be jailed instead of ticketed. He also gave prosecutors a set of tips on how they could make judges “believe” that suspects were dangerous, thereby giving courts the option of setting a cash bail where it normally wouldn’t be legal.
City and State NY’s Jeff Coltin reports:
In the course of the nearly 90-minute July 13 presentation provided by NYPTI as a podcast, Painter gave tips to the audience of prosecutors on how to jail people that otherwise would be released under the new law. Under the law going into effect on Jan. 1, 2020, defendants can be held pretrial if they miss a court appearance and don’t appear for 30 days. So Painter gives what he called a “practice pointer you can tell your police”: If a defendant warranted on a felony doesn’t show up to court, “don’t pick them up right away. Don’t be their Uber,” he said. “You’re not going to get bail on them for that violation. Wait the 30 days, and then you’ve got your bail jumping charge waiting for them.”
Painter added that “if public safety is an issue, you don’t want to wait the 30 days,” but he seemed to be encouraging prosecutors to find a way to hold defendants pretrial.
Painter later discussed how prosecutors could ask the court to require suspects awaiting trial to check-in by Skype or telephone. Because, according to Painter, simply missing a telephone call is another loophole that could be used to arrest someone for a bail violation.
“Can you do this by yourself?” Painter asked, rhetorically. “No. Can you talk to your administrative judges about doing this? Absolutely.”
“A district attorney’s office that is sending someone out to go train people across the state on how to subvert the law is extremely problematic,” said Erin George, Citizen Action of New York’s civil rights campaign director. Another criminal justice reform advocate described Painter’s presentation as “a way of tripping people up so they can be charged with a bailable offense.”
According to a 2017 report by the ACLU and Color of Change (pdf), 70 percent of people in local jails have not been found guilty of a crime. Most of the people (60 percent) in jail are there because they can’t afford bail. Bail for black defendants is, on average, $10,000 higher than bail for white defendants, according to a recent Princeton study. Black defendants between ages 18 and 29 are less likely to be released on recognizance than were white defendants.
“Claims that this training in any way seeks to frustrate or undermine the objectives of this legislation are factually inaccurate and border on defamatory,” said Miriam Sholder, spokeswoman for the Nassau County District Attorney’s office, who employs Painter.
Legally, she’s not wrong...
Which doesn’t mean she’s right.