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NYC Prosecutors Are Stoking Fear About the Mass Bailout, But Their Arguments Don’t Add Up

District attorneys’ comments belie the true purpose of bail in New York and ignore the safety risks of jail itself.

Rikers Island
U.S. Geological Survey

NYC Prosecutors Are Stoking Fear About the Mass Bailout, But Their Arguments Don’t Add Up

District attorneys’ comments belie the true purpose of bail in New York and ignore the safety risks of jail itself.

Throughout October, the Robert F. Kennedy Human Rights foundation will be working to bail out hundreds of people from New York City’s jails. The organization originally planned to target two facilities in the city’s sprawling Rikers Island jail complex: “Rosie’s,” or the Rose M. Singer Center, which detains women, and the troubled Robert N. Davoren Complex, which had held boys ages 16-17. As of Monday, the city had moved the teens to a juvenile facility to comply with the state’s “Raise the Age” law, although they appear to remain as eligible for bail as before. That leaves roughly 250 women who are eligible for bail in Rosie’s, and fewer than 100 teenagers who are eligible in the new location.

Perhaps unsurprisingly, law enforcement officials quickly assailed the proposal. The president of the Correction Officers’ Benevolent Association, Elias Husamudeen, immediately raised the specter of those released committing crimes while on bail, as did four of the five elected district attorneys in New York City (Michael McMahon of Staten Island weighed in later). The prosecutors all suggested that the bailout was jeopardizing witnesses and victims, with Queens DA Richard Brown simply saying, “It is clearly a threat to public safety.”

Such an aggressive response by law enforcement to what is ultimately a small-scale proposal is completely predictable. Their arguments, however, are deeply problematic.

Let’s just start with the fact that New York is one of four states in the country where prosecutors and judges cannot take a defendant’s likelihood of committing another crime into account when setting bail, which is intended solely to ensure appearance at trial. So when Mayor Bill de Blasio’s spokesperson says the mayor supports bailing out those who “don’t pose a public safety risk,” she is essentially admitting that the mayor’s office is okay with using a defendant’s poverty to circumvent the state’s bail law.

Now, to be clear, Bronx DA Darcel Clark is correct when she says that there could be some public safety risk from releasing someone from Rikers without any sort of re-entry plan. But the solution is not to capitalize on defendants’ poverty and use bail to (illegally) lock them up—not only because doing so violates New York’s bail statute, but because Rikers is itself a dangerous and violent place.

At the same time, it is important that any solution not be counterproductive. Brooklyn DA Eric Gonzalez, for example, is encouraging witnesses and victims to get orders of protection against those being bailed out. But as public defenders are quick to explain, such orders often fail to reflect the messy, intertwined nature of violence in the city, and they can push defendants into homelessness and unemployment, which might actually make things riskier.

There are two other conceptual problems with the prosecutors’ decision to stoke people’s fears of more offending. To start, all the people who the foundation will bail out were eligible for bail in the first place. Had each of them made bail at their arraignment and left the courtroom, one by one, over the course of weeks or months, no one would have said anything. It would have been the system working as it is designed to. So why is the release of a small number of them in a short window of time suddenly a cause for alarm? The most plausible explanation seems to be that each defendant making bail at arraignment was not actually the goal, that the purpose was to use unaffordable bail to ensure systematic confinement—even though New York State law requires judges to consider a defendant’s ability to pay bail and provides up to nine ways judges can release defendants to ensure poverty alone doesn’t trap them in Rikers.

And let’s be clear: The action taken by the foundation, while laudable, is relatively minor in total scope. Rikers currently releases approximately 50,000 people every year, so the few hundred that the foundation will help leave jail constitute less than 1 percent of the total number flowing out of Rikers every year. It seems unlikely that a 1 percent increase will lead to any noticeable increase in crime. (And contrary to what some law enforcement types have said, evidence indicates that people bailed out via bail funds are just as likely to show up as those bailed out by family or friends.)

Finally, any risk to victims or witnesses has to be balanced against the risks to those detained in Rosie’s and at the Horizon Juvenile Center, where the teens formerly incarcerated in Davoren are now housed. Rikers Island is a violent, dysfunctional place. The city’s own independent commission that looked into conditions on Rikers quoted family members of detainees calling the place “Torture Island.” Rikers operated under a “code of violence,” the commission reported, and life there was defined by “brutal treatment” and “inhumane conditions.” In fact, the commission noted that those conditions were particularly dangerous and antithetical to re-entry for women and juveniles—the very populations the bailout targets. And Horizon is currently facing a federal investigation into the claim that the children detained there were sexually abused by staff for years.

By talking about the harms to victims and witnesses but ignoring those faced by the people on Rikers and at Horizon—people who retain the presumption of innocence, though that should hardly matter when talking about treating people with basic human decency—the prosecutors are reinforcing the dangerous politics of punishment. Criminal justice decisions often operate under fear of the “Willie Horton Effect,” which means that any act of leniency is politically risky, since the person out on bail could commit a crime that gets sensationalized attention. Needlessly keeping someone locked up, meanwhile, remains relatively riskless for politicians, since the costs are borne by a population mostly out of sight and whose harms aren’t considered relevant in the first place.

Even if New York’s prosecutors ultimately do not impede the foundation’s efforts, their rhetoric is disappointing. Much of criminal justice reform is about making the general public think more carefully about the needless, preventable, and often counterproductive harms that the system creates, and the prosecutors’ reactive “what about public safety?!” proclamations directly undermine such efforts, and only serve to strengthen the public’s willingness to continue to cage women and teens.

‘Worse Than Guantánamo’

Dozens of former detainees at the Gwinnett County jail in Georgia claim they were subjected to brutality at the hands of its Rapid Response Team.

Outside the Georgia Diagnostic Prison in March 12, 2002, in Jackson, Georgia. British national Tracy Housel was executed by lethal injection that day at the prison. Housel was given the death penalty for a 1985 murder in Gwinnett County.
Photo illustration by Anagraph / Photo by Erik S. Lesser/Getty Images

‘Worse Than Guantánamo’

Dozens of former detainees at the Gwinnett County jail in Georgia claim they were subjected to brutality at the hands of its Rapid Response Team.

During a night out in northern Georgia, Keven Goodwin didn’t expect to be subjected to trauma that would rival his experiences serving four years on active duty in the army.

When he was arrested in 2012 for a traffic violation and found to have a blood alcohol level above the legal limit, officers took Goodwin to the Gwinnett County jail where he was placed in a cold, empty holding cell. He remembers tapping on the glass, trying to get a deputy’s attention. His shoes were outside the door, and his feet were becoming filthy.

But help never arrived for Goodwin. Instead, a team of officers wearing helmets, masks, and full riot gear entered his cell, shot him with a pepper ball gun, jumped on Goodwin and pinned him to the ground, and then put him in a restraint chair where they left him shackled for four hours.

“This is worse than a third-world country,” the 45-year-old remembers thinking. “This is worse than Guantánamo.”

He pleaded with the officers to stop assaulting him. He said he had muscle issues because of his military service, and the restraints were causing serious pain.

“I was trying to tell them, ‘Hey, I’m a disabled vet,’” he said. “‘I have injuries to my legs and I need to move around.’ But that didn’t work.”

(In court filings, attorneys for the Gwinnett County Sheriff admitted that Goodwin was placed in a restraint chair, but denied that he was shot with a pepper ball gun).

Goodwin is just one of dozens of pretrial detainees who claim they have been subjected to excessive force by Gwinnett County Sheriff R.L. “Butch” Conway’s Rapid Response Team (RRT). Located about 30 miles from Atlanta, Gwinnett is home to nearly one million residents and is Georgia’s second most populous county; its jail houses nearly 3,000 people. The RRT was created around 2001 to provide a tactical response in the event of a riot or other emergency within the jail; it has since come to be used to exert control over incarcerated people deemed to be disruptive.

According to a lawsuit originally filed in a federal court in 2013 which has 12 plaintiffs and names Sheriff Conway and Lt. Col. Carl Sims as defendants, the RRT’s use of excessive force is “frequent, pervasive, and well documented.” The detainees claim they knocked on the glass, yelled for help, or created some other minor disturbance when the RRT deployed excessive force against them, including applying pressure points on their bodies “for the purpose of inflicting pain” and placing them in a restraint chair for hours. They say that they were not acting violently or posing a threat to officers, other inmates, or the jail property.  “It’s disgusting, disturbing, and an abuse of power,” Goodwin said.

Though a federal judge in Georgia denied the plaintiffs’ request for class action status in May, the court reopened the case in late August after an amended complaint was filed. The case will most likely go to trial in the coming months. Craig Jones, a Washington, Georgia, attorney who represents the detainees, says the sheriff instructs the RRT to violate both the department’s policy against excessive force as well as the civil rights of people incarcerated at his jail. When the RRT is called to respond to an inmate, Jones says, they subject detainees to gratuitous, punitive, and sadistic pain in retaliation for alleged noncompliant behavior.

“A lot of it is just a matter of de-escalating the situation,” he said, “but once they call the Rapid Response Team, they’ve basically pulled a switch and there’s no going back. They’re not trained in de-escalation techniques. They’re trained in making a tactical entry and then a takedown. A dynamic entry and then scaring the shit out of people. And occasionally they hurt them—hurt them badly. They always inflict some kind of pain.”

Deputy Shannon Volkodav, public information officer for the Gwinnett County Sheriff’s Office, declined to comment on pending litigation. But in February, the office did respond to a specific complaint from a detainee who said she didn’t receive adequate medical treatment in the jail. “If you don’t like the way we run the Gwinnett County Jail,” Volkodav wrote in a Facebook post, “stay out of it.”

Many of the plaintiffs, however, including detainees with disabilities and medical conditions, say officers ignored their pleas for medical help. Most of them claim to have lasting physical, mental, and emotional trauma because of their encounters with their RRT. Goodwin said the incident elevated the severity of the muscle issues he experiences in his legs and that he continues to be in physical pain. Similarly, another plaintiff, Coleman Martinelli, alleges that when he was booked in a 2013 DUI, the RRT violently dragged from a patrol car to a holding cell where they strapped him to a restraint bed for several hours and placed a biohazard mask on his face even after he told officers that he had PTSD from his military service.

After his arrest, Goodwin thought that his experience was an anomaly. But then one night, he turned on the news and saw video showing the RRT tackling and restraining other detainees. He called the attorney he saw on in the news segment and said he wanted to join the lawsuit.

“It brought tears to my eyes, watching video of what actually happened,” he said. “They showed me, ‘It isn’t just you.’”

Grzegorz Kozlowski said he escaped the communist Polish People’s Republic, but experienced the worst abuses of his life while detained for the night in at the Gwinnett County jail in 2013. “I had a very hard life. I was beaten and I run away,” the 60-year-old said. “What happened in the Gwinnett County jail, I never, never believe it would happen in America.”

Kozlowski says that he ended up in the jail because of a misunderstanding. A non-native English speaker, he became frustrated and angry when employees at a Sears store could not understand him as he tried to buy a pair of shoes. Store security called the police who then arrested him for disorderly conduct.

“I am right now 33 years in America,” he said. “I am not troublemaker. I grow up a good citizen. I was never criminal in Poland. I was never criminal in America.”

At the jail, Kozlowski was brought into a holding cell, where he began screaming for help. He suffers from diabetes and high blood pressure, and was barely conscious when the RRT entered his cell, pulled him to the floor, jumped on him, and threw him in a restraint chair.

“They treat me worse than I treat my dogs,” he said angrily.

Years later, he “would awaken in the middle of the night several times per night, several times per week,” according to the complaint. He also continued to have problems with the parts of his wrists and ankles where he had been shackled.

“I am not criminal but doesn’t matter,” he said. “Criminal, not criminal. You’re not supposed to be treated like that. No way. That’s not normal.”

The number of such claims against the RRT are growing. After a judge rejected a motion to bring the lawsuit as a class action in late May, Jones said he sent a mailer to all 1,300 people who have been the subject of a use of force report by the RRT since 2011. 

Like Goodwin and Kozlowski, most of the detainees who have come forward to recount experiencing excessive force by the RRT have only been to the jail once, Jones said.

“The vast majority of the people who get subjected to this are not criminals,” he said. “They’re not people who have been in the jail before who know the deal. Most of them are like, drunk kids or loudmouths or people who are mentally ill.”

As the litigation proceeds in federal court, the family of Chris Howard, a 23-year-old who died in 2017 as a result of being in the Rapid Response Team’s custody has filed a lawsuit, demanding $10 million for the “negligent, reckless” actions of the officers. On Feb. 15, 2017, Howard, who was on probation because of a drunk driving accident, was booked into the Gwinnett County jail after he failed a drug test. He had a pre-existing genetic disorder that can lead to dangerously low blood sugar levels; when he fell to the ground because of an apparent seizure, officers refused to get him medical attention.  After officers finally agreed to take him to the infirmary, Howard went into cardiac arrest. He died two days later.

A federal grand jury has also opened a criminal investigation into the sheriff’s office. Because the investigation is not public, Jones said it’s not clear if it is focused exclusively on Howard’s death or the RRT’s use of force in general. In August, a week before the grand jury investigation was revealed in court filings, an RRT deputy was arrested and charged with battery for allegedly punching a female inmate in the head. Last week, the Atlanta-Journal Constitution reported that in 2015, Gwinnett County Sheriff’s deputy Robert Todd Garmon was arrested and charged with child cruelty after shaking his infant son with such intensity that his skull was fractured. Garmon returned to work as a jailer within two weeks of his arrest; he resigned from the department this summer after he entered a plea deal in the case.

Though it appears that only one detainee has died at the hands of the RRT, Goodwin says he wouldn’t be surprised if stories about other fatalities emerge.

“Anything could have happened to me in there,” Goodwin said. “I could have not come home at all.”

He said he hopes the lawsuit can put an end to the RRT before others are emotionally and physically harmed.

“I hope they’re held accountable,” he said. “I feel like my civil liberties were violated, and I know from watching the tape that they’ve done this time and time again to other people. … I don’t want this to happen to anybody else.”

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When Handing Out Candy To Trick-or-Treaters Means Risking Arrest

Lawyer seeks end to Halloween restrictions that target people convicted of sex offenses.

Photo Illustration by Anagraph / Photo by Win McNamee/Getty Images

When Handing Out Candy To Trick-or-Treaters Means Risking Arrest

Lawyer seeks end to Halloween restrictions that target people convicted of sex offenses.

Before the police apprehended Steve, he tried to kill himself by cutting his wrists, he told The Appeal. Then 20 years old, he had attempted to sexually assault a 12-year-old girl in California.

“I couldn’t believe I had done that,” said Steve, whose name has been changed to protect his identity. “I felt I couldn’t live with myself.”

He spent three years in prison, and after he was released, stayed in California. He married, had two children, and found a career. “I made a decision that I’m going to try to be the best person I can be the rest of my life,” said Steve, who is now in his 50s.

But as a sex offender registrant, his past was never far behind him. In July 2012, Steve’s wife was reading the local paper and saw that people on the sex offender registry in Simi Valley, California, where they lived, would have to post “No Candy” signs on their homes on Halloween to, theoretically, limit their contact with children.

Registrants can be subjected to a range of restrictions, depending on the state, county, or city. They can, among other things, be banned from entering parks or their child’s school, or from living within a certain distance of a school or daycare center; registrants are often required to have their photos and addresses available in online databases.  

If this protected children, I would be the first one to say yes and to think they were a positive asset to our society, but they're not.Janice M. Bellucci, Alliance for Constitutional Sex Offense Laws

Steve spoke out against the Halloween requirement at a City Council meeting where he met attorney Janice M. Bellucci, executive director of the Alliance for Constitutional Sex Offense Laws. She was drawn to this work after learning that someone she had known for years was on the registry. In Oct. 2012, she successfully challenged the sign requirement on behalf of Steve and several other people.

“The work she did wasn’t really for me. It was for my family,” said Steve, who likened the “No Candy” sign to putting a bullseye on his door. “It affects people who have done nothing.”

Bellucci is now hoping for a similar victory. Today, she plans to file suit against Calimesa, California, challenging its Halloween ordinance as well.

“The [Halloween ordinances] punish people on the registry and they do not increase public safety,” Bellucci told The Appeal. “If this protected children, I would be the first one to say yes and to think they were a positive asset to our society, but they’re not.”

Calimesa, a small city in Riverside County, forbids registrants, between the hours of 12 a.m. to 11:59 p.m. on Oct. 31, from decorating their home with Halloween decorations; mandates they leave all exterior or decorative lighting off from 4 to 11:59 p.m.; and forbids them from answering the door to trick-or-treaters.

In August, Bellucci sent letters to five California cities, including Calimesa, urging them to repeal their Halloween restrictions by Sept. 28 or face litigation. So far, Temecula has repealed its ordinance, and Lancaster is taking steps to do the same.

Halloween regulations typically come in two forms: They apply to people on parole or probation for sex offenses, or they apply to people on the registry, like Steve, who are no longer serving a sentence of parole or probation.

The state of Missouri has a rule similar to the one that Bellucci fought in Simi Valley, requiring registrants on Halloween to post a sign at their home stating, “No candy or treats at this residence.”

“We have a responsibility to children,” Deputy Raashid Brown, public information officer with the Jackson County, Missouri, sheriff’s office told The Appeal. “We are preventing individuals from being victimized.”

However, Brown noted, “People do make mistakes and people do change.”

“It is possible and plausible that some of these individuals may have gotten in a bad situation, but our job is to ensure that people aren’t victimized again,” Brown said.

California and New York limit the activities of people on Halloween who are serving parole for sex offenses.

The California-based Operation Boo, which marks its 25th anniversary this year and is run by the state’s Department of Corrections and Rehabilitation, mandates that registrants who are on parole must remain indoors from 5 to 10 p.m. during which time they can open the door only to respond to law enforcement. They must turn off all exterior lights, and “no offering of Halloween candy and no Halloween decorations are allowed.” Homeless parolees are required to spend the curfew hours in transient sex-offender curfew centers.

In New York, under a similar program called Operation Halloween, the state Department of Corrections and Community Supervision (DOCCS) requires that the roughly 3,000 parolees convicted of sex crimes remain indoors at home on Halloween, starting in the early afternoon or at the end of their work day until 6 the next morning, according to a DOCCS spokesperson. The DOCCS website states parolees are not allowed to have Halloween candy in their possession, but the spokesperson told The Appeal in an email, “Possessing candy is not a violation of parole.”

“Parents should feel comfortable allowing their children to participate in Halloween festivities without worrying about their safety, and that is why the Department continues its commitment to this special operation year after year,” the spokesperson wrote.

But many experts see the programs as misguided. Operation Halloween perpetrates a “false narrative around sex offenders,” said Christina Swarns, attorney-in-charge at New York’s Office of the Appellate Defender. “People think most people who are sexually abused are abused by strangers, but that’s not the case.” More than 90 percent of juvenile victims of sex crimes know the person who caused harm.

All of these restrictions when viewed in isolation may not seem that bad. When viewed in conjunction with all the other laws that are out there, it's death by a thousand legislative cuts.Guy Hamilton-Smith, Sex Offense Litigation and Policy Resource Center, Mitchell Hamline School of Law

Another myth that underpins these requirements, advocates say, is that people who commit sex crimes are likely to reoffend. Just over 5 percent of people convicted of sex crimes are arrested for another sex crime within three years of their release from prison, according to a study conducted by the U.S. Bureau of Justice Statistics. The only offense with a lower recidivism rate is murder.

“People believe that people [on the registry] all share a common, unchangeable psychological failing that causes them to commit offense after offense after offense,” said Guy Hamilton-Smith, a legal fellow with the Sex Offense Litigation and Policy Resource Center at Mitchell Hamline School of Law. “What numerous studies show is that’s just not the case.”

Research also indicates there is no increased danger of child sexual abuse on Halloween. In a study that examined more than 65,000 non-familial sex crimes against children from 1997 through 2005, the report’s authors found there was “no significant increase in risk for non-familial child sexual abuse on or just prior to Halloween.” Sex crimes against children by non-family members accounted for two out of every 1,000 Halloween crimes. However, the authors noted, children were at greater risk on Halloween of being hit by a car.

The Halloween restrictions are emblematic of the myriad ways that registrants are banished from participating in everyday life, said Hamilton-Smith.

“All of these restrictions when viewed in isolation may not seem that bad,” he explained. “When viewed in conjunction with all the other laws that are out there, it’s death by a thousand legislative cuts. It’s not the Halloween law that kills you.”

The maze of requirements imposed on registrants’ lives—from where they can live to what decorations they can put on their homes—prevent them from forming the very community connections that are essential for rehabilitation and reintegration, advocates say.

And this, according to Steve, is the real motivation behind the Halloween ordinances and the registry as a whole: to tell registrants “they are not welcome in their community because of what they did, not because of who they are.”

“It’s not that you were an offender or did something,” Steve told The Appeal. “It’s that you are an offender and you’re an active threat.”

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