Kathy Hochul’s ‘Pro-Suffering’ Campaign Against Bail Reform

This piece is a commentary, part of The Appeal’s collection of opinion and analysis.

New York Governor Kathy Hochul, a Democrat, is campaigning to take her state back decades on issues of pretrial justice and policing.

Currently, New York Democratic lawmakers are considering adopting changes to a bail law that would allow even more people to be crowded into deadly jails pretrial, despite data demonstrating that stricter bail policies do not affect public safety. This push stands as an attack not only on the modest bail reforms passed in New York in 2019 and implemented in 2020, but also on pretrial rights that have existed in the state for more than 50 years. At Hochul’s insistence, the bail reform issue has hijacked the budget conversation and stalled its approval. Hochul has also doubled down on her support for qualified immunity, a court-created legal doctrine shielding police officers and other officials from many civil rights lawsuits.

Hochul has seemingly not been moved by the overwhelming evidence of deplorable jail conditions and police brutality, or the pleas of bereaved families. New York City jails claimed at least 19 lives in 2022, the highest number in a decade. In this same period, American police killed more than three people per day, on average, the highest number since researchers with Mapping Police Violence began keeping data in 2013. But now Hochul has officially embraced racially charged fearmongering by championing measures that will lead only to more death and suffering.

This sort of “pro-suffering” stance from Hochul is hardly new for elected officials in America, even in historically blue states. Since the nation’s inception, political opposition to extrajudicial torture and executions has often been less about resisting racism, violence, or injustice and more about discomfort with the lowbrow disorder of “mob justice.”

In the 19th and early 20th centuries, brutal lynchings of mostly Black people were commonplace in many parts of the United States. Accusations of “crime” would be turned over to the mob, which would then hunt, torture, and murder alleged perpetrators in acts of vigilante violence, which the mob declared to be “justice.”

Lynchings throughout the U.S. posed a threat to the reputation and power of local officials, particularly amid growing public opposition to the horrific practice. But politicians were also desperate to maintain support from the lynch mobs themselves. The solution to appeasing both politically enfranchised factions who demanded due process—what we might call “reformers”—and those who demanded swift and brutal punishment would not involve any broader effort to eradicate racism. Instead, officials would simply replace vigilante lynchings with more orderly forms of violence by the State.

By deputizing the State to dispatch “justice,” politicians could sanitize lynchings while sating the mob. Executions and torture of undesirables persisted, but now these acts would take place at the hands of appointed officials with uniforms and badges, often behind jail or precinct walls. In a grotesque approximation of due process, this shift would also continue ritualized public spectacles of suffering in the form of police killings, which carried an added touch of bureaucracy—perhaps the promise of some duly filed paperwork.

Under this new system, just as before, the State gave certain individuals permission to exact violence as they defined and enforced crime, all while distinguishing between those who received punishment versus care.

These changes also brought with them a rapid escalation in the use of capital punishment. According to historians such as Dr. Michael J. Pfeifer, author of Rough Justice: Lynching and American Society 1874-1947, it is no coincidence that the number of lynchings fell precipitously with the growth of the death penalty, as the sentence was freely meted out to the same Black and brown communities also targeted for less-official public lynchings. The results were so similar that historians coined the phrase “legal lynchings” to refer to the trial process. After all, what due process did the system afford to George Stinney, who was convicted after a 10-minute trial and electrocuted to death at age 14?

Over time, cosmetic modernization efforts have brought changes to the race of these uniformed executioners, the language in their job descriptions, and the focal points of their enforcement efforts. But the purpose of the institution remains largely the same.

While New York recognizes the official use of capital punishment as a threat to its progressive bona fides, more people died last year in New York City jails before ever being sentenced—awaiting due process—than were executed in the entire United States. Cops who kill not only remain on the force but are repeatedly promoted. NYPD officer Wayne Isaacs is still drawing a taxpayer-funded salary today, years after he was captured on camera senselessly killing an unarmed Delrawn Small in front of his girlfriend, teenage stepdaughter, and four-month-old son. In 2021, when a retired NYPD officer hunted three Black boys in Brooklyn for seven minutes while brandishing a gun, all over the supposed offense of hitting his storefront with a basketball, police leadership swiftly voided his arrest.

And last week, while elected officials visited Rikers Island to speak with constituents, including those held in solitary confinement cells nicknamed “The Kennels,” a fire tore through the unit, which had no functioning alarms or sprinklers. Detained people said they were left alone for approximately 40 minutes as they attempted to use toilet water to douse those being burned alive.

Our communities have become far too accustomed to seeing the State abuse and murder our loved ones and neighbors without accountability. To those in power, these forms of violence and injustice have never been the problem. Governor Hochul and those who support her policies on policing and pretrial justice are now campaigning to ensure that more people suffer horrific deaths in jail before any determination of guilt, and that cops remain empowered to terrorize with impunity. This is simply the latest evolution of a system of asymmetrical justice, which now uses State-legitimized brutality to conveniently paper over the disorderly mob. But beneath it all, the mob still exists. Through her actions, Hochul is telling it, Trust us, you will get your pound of flesh.

Victor Dempsey is a policy expert, organizer, advocate, and brother of Delrawn Small, who was killed by NYPD officer Wayne Isaacs in 2016. MK Kaishian is an activist and partner at civil rights firm Kaishian & Mortazavi LLC, which represents several families of those killed while awaiting trial at Rikers Island in 2022 and other victims of abuse by the State. Both are from New York.