The retirement of Justice Anthony Kennedy from the Supreme Court this week has left advocates of civil liberties in great despair. Kennedy, a moderate conservative who was often the court’s swing vote, will most likely be replaced by a staunch conservative. Abortion rights, voting rights, affordable healthcare, and many other issues that affect the daily lives of Americans now hang in the balance.
What will this sea change mean for the future of the criminal justice system? It is hard to tell. The system is in dire need of reform: Too many people are incarcerated for far too long; people of color are treated worse than their white counterparts; and the quality of justice one receives depends far too often on one’s income. But even while Kennedy sat on the bench, the Supreme Court has never provided a remedy to these problems. In fact, one might argue that the Court has been part of the problem.
The Supreme Court gave usTerry v. Ohio, a case that permitted cops to stop and frisk individuals based on “reasonable suspicion”—a standard even lower than the probable cause required for an arrest. Many cops stop, search and harass individuals without even meeting that low standard. Terry laid the groundwork for racial profiling, and the Court’s decision in Whren v. United States left no doubt that the Supreme Court would not provide a remedy for this practice. The Fourth Amendment to the U. S. Constitution prohibits unreasonable searches and seizures, but the Supreme Court has created so many exceptions to the warrant requirement that the exceptions devour the rule. Cases like Graham v. Connor, Scott v. Harris, and most recently, Kisela v. Hughes, give cops permission to use excessive and deadly force in far too many circumstances. This is all settled law. With another conservative justice on the Court, it could get worse.
That is why it is so important, now more than ever, that we pay attention to the election of prosecutors at the state and local level. Over 99 percent of all criminal cases are resolved in state court, and the most powerful official in the system is the prosecutor. Prosecutors alone decide whether to bring criminal charges and what those charges should be. They decide whether to offer a plea bargain and what the plea should be. The charging and plea-bargaining decisions effectively control the system and even predetermine the outcome in most cases, especially when one considers the fact that 95 percent of all criminal cases that result in convictions are resolved with a guilty plea. The power and discretion of prosecutors is almost unlimited, and unfortunately most prosecutors have pursued tough-on-crime agendas that exacerbate the problems in our criminal justice system, like mass incarceration and racial disparities.
The good news is that prosecutors can use their power and discretion to reform the system—if they have the will to do so. That is why we must work to elect progressive prosecutors. Progressive prosecutors can choose not to bring charges for minor offenses and can divert nonviolent cases out of the system. Progressive prosecutors can oppose cash bail and propose alternatives to incarceration. Even with a Supreme Court hostile to criminal justice reform, progressive prosecutors can make a difference. They can dismiss cases based on racial profiling and unconstitutional searches, and they can prosecute cops who use excessive force. But they will only do this if we demand it.
Recently elected progressive prosecutors are demonstrating the power of their offices to create change. Philadelphia District Attorney Larry Krasner, who took office this year, issued a memo to the prosecutors in his office directing them to decline certain charges, divert more cases, and seek lower sentences. In Cook County, home of Chicago, State’s Attorney Kim Foxx, has made significant progress toward bail reform, increased transparency, and making fairer charging decisions since her election in 2016. Houston District Attorney Kim Ogg, also elected in 2016, has declined prosecution of minor marijuana offenses and implemented bail reform.
Even as the Supreme Court moves further to the right, we can fix our broken criminal justice system if we elect prosecutors committed to meaningful reform and hold them accountable. No matter who is on the Court, prosecutors can use their power and discretion to reduce the incarceration rate, eliminate racial disparities, and create a criminal justice system that is fair and just for all. We must demand that they do so.
Clarification: This article cited Harris County District Attorney Kim Ogg’s commitment to bail reform. Shortly after this piece was published, a leaked email from Ogg revealed that her office is continuing to request high bond amounts for minor crimes, a policy inconsistent with a commitment to serious bail reform in the opinion of the authors.
The night before New Year’s Eve last year, Wayne Styles was on his way to a hip Philadelphia jazz club. But he never made it downtown. Two white police officers pulled over Styles, who is Black. According to the police report, the reason for the stop was that his windows were tinted too dark. His front windows were down because he was airing out his car, so the officers could see the color of his skin. The stop did not only dampen the evening, it spurred a months-long legal saga.
While Styles, a 52-year-old security guard employed by the city, shuffled through his wallet for his driver’s license, the officer saw his permit to carry a firearm. He asked if Styles was carrying; he was. The officer inspected his gun and saw that the serial number had been scratched.
“I let him know that that gun was stolen in the past and that it was court ordered for me to have my gun back,” Styles said. The thief had damaged the serial number, but when the gun was recovered, the court decided it was legible enough and ordered it returned to him.
Not swayed, the officer arrested Styles on federal felony charges of possessing a firearm with an altered serial number and brought him to the precinct. There, by video, a judge slammed him with a $25,000 bail. He couldn’t immediately post the required $2,500 so was hauled to jail.
One day and four phone calls later, Styles found someone who had that kind of money: his longtime friend Alexander William, a retired sanitation worker. “I don’t have a lot of money, but it wasn’t no problem,” William said. “He’s a good friend of mine.”
On Feb. 20, when Styles finally had a court hearing, the charges were tossed. In theory, bail is used to ensure that a defendant doesn’t flee. But in Philadelphia, like many other jurisdictions, the court keeps a portion of that deposit as a “processing fee.” It is a full 30 percent in Philadelphia—whether a person is convicted or not. So, when William got his money back, it was short $750. “They always told me they kept a little bit of it, but I didn’t know how much,” William said. In effect, he paid hundreds of dollars for his friend’s wrongful arrest.
Unlike most cases, the judge ordered the entire bail be returned. Nevertheless, it seemed as though his financial loss would be like other defendants: The courts stalled for months, but finally returned the $750 this week, several days after an inquiry by this reporter. The First Judicial District of Pennsylvania declined to comment on the delay.
“We simply don’t believe that there should be a charge for your freedom,” said Mark Houldin, policy director at the Defender Association of Philadelphia. “Usually it takes a lot for our clients to get enough money together. Keeping a percent of that results in a tax on people in poverty.”
The bail fee is just one small part of a larger financial scheme that generates revenue from the pockets of people caught up in the criminal justice system. Any conviction in Philadelphia includes a bill with items such as “Commonwealth Cost,” “County Court Cost,” and the “Judicial Computer Project.” Typical tallies range from $200 to over $1000 according to a recent analysis by Harvard Law School’s National Criminal Justice Debt Initiative. When a bill lingers for longer than two years, it is handed off to a private collection agency that adds a 25 percent surcharge, according to a contract obtained by The Appeal through a public records request.
“Because jurisdictions are so cash strapped, anything that can be passed along to the defendant is passed along,” said Cherise Burdeen, CEO of the Pretrial Justice Institute, a nonprofit based in Rockville, Maryland. “Essentially, you’re paying for access to justice.”
The bills handed out by Philadelphia criminal courts in 2016, the most recent data available, added up to about $34 million. This total includes victim restitution, but those payments only accounted for a quarter of the total. The largest portion, 69 percent, came from court fees, according to the Administrative Office of Pennsylvania Courts.
This pot of money helps pad a few different budgets. In 2017, 29 percent went to the commonwealth and 62 percent went to the city. The judicial district’s projected budget for next year depends on about $31 million from court fines and fees, nearly one-third of the total $110 million it will take to run the civil and criminal courts.
Philadelphia is “not the worst of the worst” said Mitali Nagrecha, Director of Harvard Law School’s National Criminal Justice Debt Initiative. The city’s judges don’t jail people for getting behind in payments, she noted, a practice that is a problem in otherjurisdictions across the country, including other parts of Pennsylvania. However, “[w]e’ve also learned that in Philly court costs are typically imposed without regard to financial circumstances,” she said. “This is surprising as jurisdictions across the country are reforming, including by enacting laws to require consideration of ability to pay up front.”
While court debt doesn’t lead to jail time in Philadelphia, it does prevent record expungement. So, people who can’t pay continue to be followed by their past convictions in the eyes of landlords or employers who run background checks.
The city is leaning toward nixing the bail fee, which delivered more than $2.9 million to its general fund in fiscal 2018. The 2019 budget, which passed in early June, accounts for loss of this revenue, but to date people are still being charged. Mike Dunn, a spokesman for the mayor, wrote in a statement that administration officials and the judicial district are having “positive conversations” about eliminating the fee, “though a number of procedural matters need to take place before any change can occur.”
Keeping a slice of a bail deposit is not unique to Philadelphia courts. It’s relatively common, though the amount varies. For comparison, in New York City the courts keep the same percentage as Philly, 3 percent of the bond set—but only when the defendant is found guilty.
New Orleans is perhaps the most notorious jurisdiction for relying on “user-funded” revenue, meaning money drawn from people caught up in the justice system. Last year, a federal judge ruled that this created a conflict of interest for the judges. “It is the unfortunate result of the financing structure, established by governing law, that forces the Judges to generate revenue from the criminal defendants they sentence. Of course, the Judges would not be in this predicament if the state and city adequately funded [the criminal court],” Judge Sarah Vance of the Eastern District of Louisiana wrote.
Unlike the bail deposit fee, most of the charges assessed in Philadelphia are not in the purview of the city, but are mandated by state law. However, Andrew Christy, a legal fellow at the ACLU of Pennsylvania who has been investigating court debt, took a close look at that statute and said he was surprised to find that judges are by law allowed to assess fees and reduce them according to a person’s ability to pay. “To the extent to whether there was any doubt before, the legislature changed that in 2010 to make it clear that courts can change costs,” Christy said. “But it isn’t done in practice.”
A Pennsylvania state bill would require judges to consider a person’s ability to pay when levying court costs and fines—not including bail. The measure would allow judges to consider nonmonetary penalties such as community service, or to entirely waive debt. The bill is backed by four Republicans and five Democrats.
Since the pernicious effects of criminal justice debt were scrutinized in the Department of Justice’s scathing 2015 report on Ferguson, Missouri, jurisdictions across the country have been giving their systems a closer look. Some are starting or revamping procedures for judges to assess whether a person is able to pay a fine or fee. Christy is working with the Philadelphia public defender’s office to train lawyers in how to argue for reduced costs in motions. These efforts have shown promising results. Public defender Alison Lipsky was the first to take up the cause: In two cases the judge waived all of her clients’ fees, and a third is in appeals. She estimates that about 40 percent of her clients would be eligible.
“For those individuals that have significant mental health or disability [challenges], the court costs absolutely should be waived,” Lipsky said. “They’re never going to be able to make those payments.”
Styles is happy that his bail deposit saga is finished, and that his friend was fully repaid. But he’s still dealing with the aftermath of his wrongful arrest: Even though he wasn’t convicted, his arrest still appears on his publicly available criminal record. “With this on my record, it doesn’t look good,” he said. “People don’t know the whole story.”
This article is a co-publication with Philadelphia Weekly, and is part of Broke in Philly, a collaborative reporting project among 19 news organizations, focused on Philadelphia’s push toward economic justice.
In 2013, Ms. U*, a Bronx woman in her 40s, got into a scuffle with another resident in her building. The police, summoned by Ms. U, came about six hours later but made no arrests, and Ms. U thought that was the end of it. She had no prior criminal record and, according to a case dismissal motion filed by her attorney, her neighbor did not go to the hospital. Yet two weeks after the incident, police arrested Ms. U. Her charges, for allegedly grabbing her neighbor’s neck and hitting her on the left arm, resulted in a simple Class A misdemeanor that could have been resolved quickly. Instead, her case dragged on for three years until her defense attorney successfully moved to have the case dismissed.
The lengthy ordeal made life difficult for Ms. U. Not only did she have to make numerous court appointments and deal with the stress of a potential sentence, but she also had to abide by a court-mandated order of protection for her neighbor, who, according to court documents, would sometimes seek her out, thus putting Ms. U in danger of rearrest.
How does such a simple case go on for so long? Ms. U’s attorney says it was because Bronx prosecutors initially claimed they were ready for trial, but then at various intervals said they weren’t, which resulted in considerable delays between her hearings because of the Bronx’s clogged court calendar.
But internal training documents from the Bronx district attorney’s office, obtained by The Appeal, indicate that protracted cases like Ms. U’s are not simply the result of an overburdened court system. According to the documents, prosecutors are being taught courtroom techniques with the explicit goal of stretching out cases, thereby undermining defendants’ rights to a speedy trial.
The right to a speedy trial is enshrined in the Constitution’s Sixth Amendment, but how it’s enforced at the state level is largely left to courts and state law. Many states require that a court date occur within a certain time frame, or the case gets dismissed. But New York is different. In New York, this speedy-trial “clock” is pegged to how long prosecutors can take to get “ready” to proceed: 60 days for Class B misdemeanors like graffiti and petty larceny and 90 days for Class A misdemeanors like Ms. U’s.
In practice, however, prosecutors can choose to easily manipulate this system, delaying trials for a year or longer. The documents obtained by The Appeal show that Bronx prosecutors are taught a strategy of declaring “readiness” in misdemeanor arraignments, like Ms. U’s, with the explicit goal of stopping the speedy-trial clock. This readiness is often declared by the Bronx DA’s office before a lead prosecutor has even been assigned to the case, interviewed every witness, or gathered necessary documents. Then, often months later, prosecutors can repeatedly say they are not ready, requesting small delays (one week here, one week there), which lead to months-long adjournments because of the court’s packed schedule.
The training documents indicate that such tactics are institutionalized in the Bronx, and although it’s impossible to know how many defendants that affects, cases in the Bronx drag on longer than those anywhere else in the city. In 2016, it took on average 38 percent longer to reach trial verdicts in the Bronx than it did citywide. That translates into hundreds of extra days on average that the borough’s defendants have to endure the repercussions of ongoing criminal cases.
Law professors and public defenders who have reviewed the documents say these delay tactics keep people in jail and in court unnecessarily, incentivize innocent people to take plea deals, and encourage implicit dishonesty in the courtroom. Former Bronx prosecutors point out that these tactics are legal, and argue they are an unavoidable consequence of enormous caseloads and a system that invites such conduct.
“New York’s idea of a prosecutorial readiness law rather than a speedy trial law has no parallel,”Jocelyn Simonson, a professor at Brooklyn Law School, told The Appeal. “Pinning the statutory speedy-trial clock to the prosecutor rather than the court lets the court system itself off the hook for delay. And, perversely, it gives a prosecutor who wants to delay a case a tool with which to do so in many cases. It’s the worst of both worlds.”
‘The bane of our existence’
New York’s unusual speedy trial statute is a result of lobbying from the state’s district attorneys, explained Thomas O’Brien, a staff attorney at New York’s Legal Aid Society, the city’s largest public defenders organization. In the early 1970s, when state judges were considering rules that would dismiss certain cases after six months if they had not been brought to trial, the District Attorneys Association of New York launched a campaign to block the reforms. The association’s then-president, Bronx District Attorney Burton B. Roberts, claimed such measures would enable “legalized jailbreak.” Instead, they proposed that prosecutors have to be “ready” for trial before a defined deadline. In 1972, Governor Nelson A. Rockefeller, now notorious for the Rockefeller drug laws (which would pass the next year), helped pass a speedy trial statute in line with prosecutors’ demands.
But even New York’s relatively weak speedy-trial law is seen in the Bronx district attorney’s office as an obstacle to be overcome. It’s “the bane of our existence,” states one slide in the 2017 training presentation obtained by The Appeal. Bronx prosecutors’ “goal,” it says, is to “stop the clock,” referring to the time prosecutors have to get ready before charges get dismissed.
The presentation tells prosecutors that “at arraignments,” which take place on average less than 24 hours after an arrest, “we state ready and enter into a post-readiness posture.” At that point, the case has little to no chance of moving forward, explains Simonson of Brooklyn Law School, so there’s virtually no risk for prosecutors in stating that they are ready. Simonson says that when a prosecutor states “ready” at arraignment, “at best, it is a good faith statement that … the ADA is confident that she will have access to the witnesses and evidence she needs to prove the case weeks or months in the future. At worst, it is a disingenuous bluff put forward with the knowledge that she will never have to answer for it, since so few cases go to trial.” Regardless, this statement stops the clock that is supposed to tick away prosecutors’ allotted time for getting ready for trial. The slide goes on to urge prosecutors to “get that complaint converted,” meaning seek eyewitnesses’ sworn confirmations of the complaint’s veracity. Former Bronx prosecutors The Appeal spoke with said they interpret the law to mean that once a so-called complaint conversion was complete, they could declare readiness to proceed.
But defense attorneys disagree. While no state appeals court decisions have clearly prohibited the practice, they point to several trial court rulings that havefound that complaint conversion alone is not sufficient, and prosecutors are supposed to have necessary witnesses and documents imminently available before declaring trial readiness. In People v. Beckett, for example, the court held that prosecutors should not have claimed to be ready for trial in a case where they had an eyewitness since they had not yet received results on a lab report for alleged marijuana possession.
The documents show that the Bronx district attorney’s office is “training prosecutors to engage in deception and gamesmanship,” Bennett Gershman, a law professor at Pace University and former Manhattan prosecutor, told The Appeal. “There could be a huge gap between making that conversion and actually being ready,” said Gershman, noting that the prosecutor at arraignment has likely not interviewed and fully vetted witnesses and obtained necessary documents. “I know they want to stop the speedy clock … but that doesn’t mean the end justifies the means.”
In fact, the presentation itself likens prosecutors’ “readiness” claims at court arraignments to a poker game. If a judge “threatens to send case out to trial” after the prosecutor has claimed they are ready, one slide says, the prosecutor should not “be distracted” and is told to “keep your poker game face on.” “They know they’re not ready so they’ve got to maintain their poker game face. This is bluffing,” said Gershman, who says prosecutors in this situation often try to get the defense to say they aren’t ready (and thus stop the clock themselves) or scramble to get a plea or basic materials for a potential trial.
The presentation also reminds prosecutors that if they are not ready for trial at future hearings, there are yet more ways to slow down the court process. “If you are not ready, remember you will only be charged for the time you ask for,” the presentation reads. Therefore, the slide notes, prosecutors should ask for the “least, yet legitimate” amount of delay time, so that the limited number of speedy trial days available for prosecutors to try a case are not wasted.
Babe Howell, a professor at CUNY School of Law, said the documents indicate Bronx prosecutors are intentionally asking for unrealistic, short adjournments to ensure the speedy trial clock ticks down slowly. “They know that due to court congestion, if I say ‘I’m going to be ready in two days,’ the court is going to adjourn for six weeks.”
‘What do you mean you’re ready?’
The Bronx district attorney’s office, which has been plaguedbyscandals and accusations of prosecutorial misconduct under the leadership of Darcel Clark, declined The Appeal’s requests for an interview on this matter and said “no comment” in response to written questions.
The training documents confirm that tactics to stop the speedy-trial clock have become routine in the Bronx, argues O’Brien of Legal Aid, who reviewed the documents.
“I was surprised to see this on paper, but not that much because it’s consistent with what they do, and since these are new lawyers, you would expect they don’t do this on their own, they do this because they’re instructed to do so,” said O’Brien. “I’m not saying they can never say ‘ready’ at arraignments, but that would be an unusual case because most of the time these cases involve more than one witness and multiple documents.”
Jason Foy, a defense attorney and former Bronx assistant district attorney, agreed that these practices were questionable, but said prosecutors are just doing their jobs. “They’re just … stopping [the clock] early because they know problems could develop later.” But, he continues, when a prosecutor states “ready” at arraignment, it should be taken with a grain of salt, “because the case is less than 24 hours old, what do you mean you’re ready?”
Some former Bronx prosecutors acknowledge that feigning readiness and asking for the shortest adjournment possible is enabled by court congestion. One former prosecutor, who requested anonymity citing concerns over professional reprisal, said there’s little accountability because a judge is unlikely to scrutinize prosecutors’ claims of readiness or look into their subsequent requests for delays.
And if cases drag on, defendants have no real recourse under state law to protect their right to a speedy trial. That’s because a prosecutor being ready to go to trial and actually going to trial are not the same thing. Because the clock is pinned to prosecutors’ readiness rather than an actual court date, the Sixth Amendment right to a speedy trial is not being protected.
Legal practitioners on both sides of the courtroom say that structural and legal factors beyond this weak statute exacerbate the Bronx’s case delay crisis.
New York’s controversial discovery law, for instance, allows prosecutors to withhold evidence until the day of trial and interacts with the trial-readiness statute to further delay proceedings. The presentation points out that prosecutors “CAN be ready without having supplied discovery!!” That means prosecutors can stop the clock before they hand over discovery materials—forcing the defense to decide between pushing the case to trial without the materials, or stopping the clock themselves.
Just below that comment, the presentation warns prosecutors that the practice may be risky. But nonetheless, the statements of readiness are encouraged.
The high volume of cases in the Bronx also pushes prosecutors to engage in these tactics, says Foy. “The reality is, given the volume of cases, and you have 90 days to try each case, you can’t try all your cases in 90 days,” Foy said. “The criminal justice system would collapse.” It’s not fair to injured parties, he added, to have cases dismissed too quickly. “The guy who got punched in the face, he doesn’t want the case dismissed because [the prosecutor] didn’t say the right thing in court.”
Bronx County is currently in federal court with the Bronx Defenders, a public defender nonprofit, which alleges that delays and congestion at the county criminal court violate defendants’ right to a speedy trial. Public defenders associations, like the Legal Aid Society, are also pushing to amend New York’s statute to force prosecutors to hand over discovery materials before they can claim readiness in court and count congestion delays toward limits on how long a person can be held in jail pretrial. One such bill—named after Kalief Browder, a Bronx man who died by suicide after spending three years in jail pretrial—was passed in the State Assembly last year, but was never voted on in the Senate. (Darcel Clark, the current Bronx district attorney, was the judge on Browder’s case from December 2011 to September 2012.)
That legislation would have given judges the ability to stop or start the clock and not automatically exclude delays due to court congestion. The bill was fought by the state District Attorneys Association. Its then-president, Rockland County DA Thomas Zugibe, said at the time that the organization was “fundamentally opposed to any bill that would allow a guilty defendant to escape prosecution merely because the state has failed to provide sufficient resources to the criminal courts.”
The former Bronx prosecutor thinks the current law, as it stands, is one of the major forces keeping defendants in limbo. “Honestly if anything is gonna change in the Bronx, that’s the main thing you’re gonna have to change,” the former prosecutor said, referring to New York’s speedy-trial law and the courts’ inability and refusal to stop delays enabled by the statute. “You just can’t be ready on all those cases.”
*Full name withheld at lawyers’ request.
Correction: This story has been corrected to note that Thomas O’Brien, a staff attorney with the Legal Aid Society, did not say the problem of claiming readiness too soon seemed more prevalent in the Bronx.
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