The death of NYPD officer Randolph Holder is a tragedy. Our hearts and prayers are with his family.

We all want a safer, stronger city, but reactionary decisions that are not based on evidence or facts will fail to improve public safety and our criminal justice system. We believe Mayor Bill de Blasio should withdraw his proposals and convene stakeholders to develop real solutions that can advance justice and public safety for New Yorkers. We have serious concerns that these proposals risk taking us back to a period when the development of criminal justice policy was driven by shortsighted politics and fear, which left us with defective policies, racial disparities and mass incarceration.

We acknowledge the need to act. What is needed in this moment is a clear-eyed assessment of the criminal justice system in New York City, so that we may identify problems in policy, procedure or process that may be corrected to help prevent such tragedies from happening again. New York has led the country in sensible criminal justice reforms, and we should build on these successful innovations to improve the justice system.

Instead, in the wake of this tragedy, some elected officials, including de Blasio, are succumbing to the heat of the political moment, calling for unnecessary legislative changes to criminal justice policy that will take us backward and fail to address problems within the criminal justice system that pose challenges to justice and public safety. They will create the illusion that we have addressed problems while also threatening to roll back important reforms to the Rockefeller Drug Laws that have improved safety and justice.

The nation is finally awakening to the crisis of mass incarceration. New York has led the country in reforming its criminal justice system, leading to both a drop in crime and a drop in the incarcerated population. The evidence shows that New York City’s diversion programs work. Restraint is needed to avoid making rash, convoluted and contradictory proposals.

Below, we outline our concerns and propose a way to move forward:

PROBLEM 1: The mayor’s diversion proposal threatens dangerous rollback of Rockefeller Drug Law reform.

The mayor’s proposed changes to Article 216—to require public safety as a consideration for diversion in the Judicial Diversion Statute—is redundant, because consideration of public safety is already a robust requirement under the law.

When the governor and the Legislature enacted Article 216, they specifically and objectively addressed the very public safety issue that the mayor purports to address. They did so by:

• Disqualifying from eligibility for judicial diversion any person who had previously been convicted of a violent felony in the preceding 10 years.

• Disqualifying from eligibility any person who had previously been convicted of a second violent felony offense, or who was a persistent violent felony offender.

• Disqualifying from eligibility any person currently charged with a violent felony offense.

• Requiring that before allowing anyone into the diversion program, the court must make a specific finding that “institutional confinement is or may not be necessary for the protection of the public.”

• Giving a judge the power to terminate a diversion participant from the program “for violating a release condition when such termination is necessary to preserve public safety.”

The safeguards already built into Article 216 were well-thought-out, are appropriate, and are sufficiently objective so as to prevent abuse.

PROBLEM 2: The bail proposal

De Blasio’s proposal to require public safety to be a consideration in bail hearings would allow for preventive detention, that is, detention based on “suspicion” that someone may be dangerous, without having been convicted of anything at all (CPL 216.00 and 216.05).

This provision—Article 216 Judicial Diversion—was included as a component of the reforms to the failed Rockefeller Drug Laws. Diversion programs in New York City that have proved effective are now under senseless attack.

The reforms to the Rockefeller Drug Laws, including the diversion statute, have been rigorously evaluated and determined to be particularly effective at delivering public safety improvements and reducing racial disparities.

In the most comprehensive evaluation to date, the Vera Institute of Justice recently published a major report of the Rockefeller Drug Law reforms in New York City. In their report, they found that the reforms—including diversion—were “associated with reduced recidivism rates and cut racial disparities in half.”

Among a sample of defendants diverted to treatment under the reforms, nearly two-thirds did not re-offend in the two-year follow-up period, whereas a similar sample sentenced to prison, jail, probation or time served reoffended 54 percent of the time. Those diverted to treatment were rearrested for a violent crime 50 percent less than the sample of those sentenced to prison, jail, probation or time served. The reforms to the Rockefeller Drug Laws, including the diversion statute, have been rigorously evaluated and determined to be particularly effective at reducing recidivism and racial disparities (www.vera.org/pubs/drug-law-reform-new-york-city).

The New York State Division of Criminal Justice Services issued a report in 2014 that evaluated drug law reform and found that people diverted under drug law reform “had significantly lower recidivism rates than similarly situated offenders who were sentenced to prison.” www.criminaljustice.ny.gov/drug-law-reform/documents/dlr-update-report-may-2014.pdf. p.12)

Only a small number of people are rearrested after being released on recognizance, bail or through a diversion program. The number that are rearrested for a violent felony offense is even smaller. New York has proudly stood as a beacon in remaining true to the intended purpose of bail in the criminal processing system. The New York bail statute correctly focuses on the “control or restriction that is necessary to secure (a defendant’s) court attendance.”

New York has correctly and steadfastly refused to allow its bail statute to be used to create the often-abused prosecutorial tool of “preventive detention” and has distanced itself from this ill-conceived notion to which many other states have succumbed, where public safety and potential dangerousness are simply code words for Black, Brown, poor and marginalized, and serve as an excuse to incarcerate those who by law are presumed innocent. Preventive detention was explicitly addressed by the Legislature 45 years ago when it was considered, deliberated upon and rejected. Fear, hysterics and aberrant cases should not drive public policy, and our most precious freedoms, such as the presumption of innocence and the right to bail, should not be sacrificed.

Amending the bail statute to include public safety will increase the disproportionate impact of bail on poor people charged with low-level offenses because it would require judges to consider public safety in all cases, including nonviolent misdemeanors and felonies. The mayor’s bail plan amounts to preventive detention, threatening to compound the negative racial implications of primarily incarcerating poor people of color who would otherwise return to court.

The mayor’s approach opens the door to a new era of public policy reminiscent of previous administrations, and undermines the promise of initial steps toward progressive bail reform introduced by the mayor this summer after the death of Kalief Browder.

The signatories to this letter request the following to advance proposals that will help achieve a safer, stronger and fairer city:

• We call on the New York Legislature and Gov. Andrew Cuomo to reject the preventive detention proposal and to take into account the implicit racial bias in decision-making that it invites and to reject the proposal to change Article 216, because the proposal replicates what is already current state law.

• We call on Mayor de Blasio to withdraw his support for these proposals and instead to convene system stakeholders, including judges, district attorneys, defense attorneys, police, providers of treatment and other alternatives to incarceration, and people and families affected by mass incarceration, to explore pretrial release mechanisms that do not adopt a reactionary preventive detention model, and to examine the diversion processes as currently configured in New York City—particularly Manhattan—to determine what changes should be made to enhance public safety. We call on the mayor to live up to his promise of progressive leadership.

AIDS Center of Queens County Bronx Defenders Brooklyn Community Bail Fund Brooklyn Defender Services Center for Community Alternatives Center for Constitutional Rights Center for Law and Justice College and Community Fellowship Correctional Association
Drug Policy Alliance Five Borough Defenders
Fortune Society
Harm Reduction Coalition
Housing Works
Immigrant Defense Project
JustLeadershipUSA Education from the Inside Out Coalition LatinoJustice PRLDEF Justice Strategies
Legal Action Center
Legal Aid Society
Neighborhood Defender Services of Harlem
New York County Defender Services New York State Association of Alcoholism and Substance Abuse Providers
New York State Defenders Association
Office of the Appellate Defender
Queens Law Associates St. Ann’s Corner of Harm Reduction VOCAL-NY
Washington Heights CORNER Project
Youth Represent
Russell Simmons
Michael Skolnik Elinor R. Tatum