This article is part of a joint reporting project from New York Focus and Gothamist/WNYC.
Brandon Rodriguez might have been alive today if he’d had about $1,000.
On August 9th, the 25-year-old Rikers detainee had his felony domestic violence charges downgraded to a bundle of violations and misdemeanors. But that didn’t get him out of jail. At a court hearing that day, Judge Ann Thompson imposed a $10,000 bond, 8.6% of which he would have had to come up with to go home.
Paying a bail bonds company such an amount would have been tough for the young man, his family’s attorney said. Rodriguez had struggled to find work, and was about to start a job at FedEx before his arrest.
By then the 25-year-old had already been assaulted multiple times at Rikers Island, New York City’s isolated jail complex in the East River known locally as the “Gladiator School.” In his time there, his family said, he was hospitalized once after another detainee broke his eye socket. After that, The New York Times reported, he clashed with a team of guards.
Rodriguez could not have gone to Rikers at a worse time. For months, correction officers have been skipping work in droves, leaving detainees in dozens of unmanned posts without proper food or medical attention for days.
Six days on the island proved to be too much for the young man.
On August 10th, the day after Thompson’s ruling, Rodriguez hung himself inside his intake cell. A correction officer found him with a T-shirt wrapped around his neck.
Judge Thompson did not respond to a request for comment received by her court attorney. But in an email, Lucian Chalfen, a court spokesperson, defended her bail decision, pointing to Rodriguez’s charges and his history of failing to appear in court.
Rodriguez was the ninth person incarcerated in a city jail to die in 2021. Since then, the total death count has climbed to 12. The spree of fatalities has prompted prominent elected officials to push the governor and the mayor to close Rikers and empty city jails so that fewer people are subjected to unsanitary conditions, COVID-19, and escalating violence among staff and detainees.
But Governor Kathy Hochul’s powers have, so far, been limited to releasing a couple hundred people detained for technical parole violations and transferring 200 others to state facilities. That, combined with work releases that Mayor Bill de Blasio has thus far refused to grant, would only remove a small portion of Rikers’ swelling population in the near term.
Shrinking the number of people held in city jails by any significant degree will depend on a key set of actors who have so far faced little scrutiny: New York City judges. Around 80% of the city’s jail population is composed of people like Rodriguez, locked up as they wait for trial because judges have decided to detain them or, more frequently, set bails they can’t afford.
“Judges are the gatekeepers of who goes in and out of Rikers Island,” said Jullian Harris-Calvin, director of the Greater Justice New York program at the Vera Institute, a criminal justice research organization. “They have a very central role in putting people into this set of facilities that are torturous and inhumane, where people are dying left and right.”
But rather than working to alleviate crowding within Rikers and other city jails, court data shows judges are detaining an increasing number of people before their trials, and an analysis by New York Focus and Gothamist/WNYC reveals that some judges play an outsized role in driving this trend.
A Quiet Rebellion from the Bench
In 2019, the New York State legislature passed a highly-contentious bail reform law over the vociferous objections of law enforcement groups, among others. The legislation blocked judges from imposing bail for a range of criminal charges, eliminating their ability to hold people in pretrial detention for most misdemeanors and nonviolent felonies. Judges are still allowed to set bail on most violent felonies, but only if there’s a demonstrable risk that defendants will flee prosecution.
What they can’t take into account is their perception of a person’s risk to the public. Unlike in other states, judges in New York aren’t allowed to set bail on someone, and therefore make it harder to get out of jail, because they think the person might commit another crime. That’s been a hotly debated provision of New York law for fifty years, with critics saying it ignores public safety and defenders arguing it preserves the presumption of innocence.
In practice, judges have long flouted the law in arraignment court by citing flight risk as a reason for imposing high, frequently unaffordable bails, even if their real concern is public safety.
“Look, if a judge wants to lock somebody up, they’re going to lock somebody up. It’s that simple,” said Charles Linehan, a former Manhattan prosecutor.
He used the example of someone with an existing criminal history who’s been charged with knife-point robbery.
“There might be a case where the data doesn’t support this person being a flight risk,” Linehan said. “[But the judge] may be thinking, ‘Well, he used a knife here, what if he goes out and does something horrible to somebody, and the New York Post is shouting how judge so-and-so let this guy out on no bail.’”
Setting aside whether a judge’s reasoning for imposing bail conforms with the law’s narrow confines about flight risk, how frequently a judge sets bail is often a function of the political climate.
In early 2020, after the legislature’s landmark bail reforms went into effect, judges’ pre-trial decisions contributed to a sharp reduction in the city jail population. But as shootings in the city rose—and as tabloids and law enforcement waged a successful battle to partially scale back the bail reform law—court data suggests the judiciary became increasingly unable, or unwilling, to follow the law. Judges routinely made decisions that detained people pre-trial, even when the city’s statistical tool for assessing flight risk indicated they were likely to return to court. (Like other jurisdictions, New York City uses a computer algorithm to help determine who’s likely to show up to court and who’s not.)
For example, in the final quarter of 2020, that algorithm recommended judges release 74% of defendants accused of violent felonies without bail or supervision, reflecting the fact that the vast majority of people facing such charges attend all their court dates.
But during that period, judges usually ignored these recommendations, releasing such defendants without conditions only 26% of the time. (Another 16% of those accused of violent felonies were released with mandated check-ins and other supervisory conditions).
Rikers Island and New York City’s other jail sites currently hold roughly 6,000 incarcerated people in total. A study by the Center for Court Innovation found that if judges simply reverted to their early 2020 practices, city jails would have around 760 fewer detainees on any given day. It also found that if judges followed the recommendations of the city’s bail risk algorithm, nearly 1,000 fewer people would be locked up in city jails.
Some Judges Lock People Up More than Others
When judges do impose bail, the law requires them to consider a defendant’s ability to pay. And yet, as was the case for Rodriguez, bail is frequently set out of reach for most people. In 2020, two-thirds of defendants for whom judges set bail were still in jail a week later.
In other words, setting bail usually means sending a person to jail.
But judges’ rates of setting bail are hardly uniform, according to court data released this summer.
An analysis by New York Focus and Gothamist/WNYC shows that, in 2020, New York City’s judges held or set bail on 46% of defendants facing charges in which bail could be applied—and some judges went well past this average.
In Manhattan, Judge Lumarie Maldonado-Cruz set bail or remand (holding defendants without the possibility of release) in 77% of bail-eligible cases, the highest rate in the city. The Bronx’s top judge by this metric was Beth Beller, who set bail or remand in 66% of the cases she saw. Brooklyn’s leader was Judge Quynda Santacroce, at 64%.
That Maldonado-Cruz had the highest rating in the city came as no surprise to two Manhattan defense attorneys, who requested anonymity for fear of retaliation against their clients.
“When you interview a client, one of the questions they’re always going to ask is, ‘Am I going home?’ And you have to give a different answer depending on the judge. With her, the answer is often much clearer,” one attorney said.
Like many judges, Maldonado-Cruz set bail less often in the immediate months after the reforms passed—but then began releasing fewer people in the summer of 2020 amid rising fears over gun crime and as pushback against New York’s bail reforms intensified.
“As soon as she felt comfortable getting away with setting bail again, she started doing it as if nothing had changed,” the attorney said. “And now, lately, for the last five or six months, I’ve just been feeling like... there’s some sort of unofficial agreement on the part of some of these judges to act as if things are as they used to be.”
Maldonado-Cruz did not respond to requests for comment.
The numbers also show a varying picture across the city, pointing to differing courthouse cultures and prosecutorial practices. While Manhattan ranks in the middle among boroughs when it comes to violent crime, its judges are by far the toughest on average, and nine of the top 15 judges for bail and remand rates were from the borough.
This game of chance is a given for those caught up in the criminal justice system and their attorneys, said Tiffany Cabán, a former public defender who is now the Democratic nominee for a city council seat in Queens.
“When you’re a defender, you know who those judges are,” she said, describing how she and her former colleagues would try to time some cases to avoid tougher judges and give their clients a better chance at release.
“You look to your colleague and say, ‘Hey, who is the judge coming next? Because maybe we shouldn’t arraign this case. We should wait an hour,’” she said.
For Harris-Calvin at the Vera Institute, the fact that some judges have set bail at such high rates reveals the danger of giving judges too much discretion.
“Whether or not you go to jail—whether or not you have the consequences of losing your child, losing your employment, losing your housing, losing your connection to the community, losing your medical care, your mental health services—depends on who you just happen to be before as a judge. Which makes our system less fair. It makes our system less equitable,” she said.
Linehan, the former prosecutor, said there aren’t easy alternatives.
“The amount of people being held on bail, and therefore the population at Rikers, is being directly impacted by the decisions that individual judges are making, based often on subjective factors,” he said, noting that the algorithms that judges rely on when setting bail can also be biased. “But I don’t know any other way to do it.”
Sent to Rikers
When Segundo Guallpa was arrested on domestic violence charges, he went to Rikers Island. Now, his wife, Luz Gualman, wishes he’d gone somewhere where he could have actually gotten help.
For most of their 37-year marriage, Gualman remembers her husband as an “excellent” family man—cooking for the kids, cleaning the house, and playing volleyball with his friends after work in Corona, Queens.
Then, around 1997, the Ecuadorian immigrant was involved in a construction accident that permanently severed the tips of two of his fingers and left him unemployed. Stuck at home, he began drinking, usually just beer. At first, Gualman says, it didn’t pose much of a problem. After coming home from work at her job at a clothing factory, she would tell him to stop, and he would.
But then around 2013, while standing outside his house late one night, Guallpa was assaulted in a robbery. The attacker hit him repeatedly in the head, almost killing him. Afterwards, he began drinking more and became violent towards the woman keeping his family afloat.
Gualman suffered her husband’s abuse for years. She would hide and sleep in her kids’ rooms to avoid him when he was drunk. “I could have called the police like a dozen times, but I never did because I was afraid of what would happen to him,” she recalled.
But one day this past August, after a particularly brutal assault, she told her daughter to call 911. She was going to give the criminal justice system a chance.
“What I wanted was protection for myself,” she said, noting that she wanted her husband to leave and go somewhere else, such as a rehab facility. “And maybe that they would do some kind of treatment or something for his alcoholism.”
At the bail hearing that followed his arrest, however, treatment wasn’t an option. Queens Judge Edwin Novillo gave Guallpa a $7,500 bail bond.
With the family already behind on rent, gas, and credit card bills, even the 6.6% fee for that amount was out of reach for the sporadically employed former construction worker, according to Gualman.
Judge Novillo did not respond to requests for comment about whether he’d taken Guallpa’s ability to pay into consideration. Guallpa was removed from Novillo’s courtroom and sent to Rikers. He wouldn’t see his family again.
Proponents of decarceration want to see judges take a different tack—respecting the legal requirement to release people who pose little flight risk, reducing their use of bail, and sending fewer people to Rikers as they await their trials. They note data showing less than 1% of people who are released pre-trial are re-arrested for violent felonies, and that a jail’s harsh environment and the disruption it causes in their lives can actually make them more likely to engage in criminal activity in the future.
“The research overwhelmingly indicates that releasing people reduces recidivism in the long run, and pre-trial detention increases it,” said Michael Rempel, a criminal justice researcher and director of jail reform at the Center for Court Innovation.
“I think that’s where the public is often confused, because it’s intuitive and obvious that detaining people means that they won’t be rearrested while they’re detained,” he said. “But less intuitive is that all of these people are inevitably released… so the complete story is [judges are] actually increasing recidivism, in the long run.”
For cases in which there is a genuine risk of flight, New York’s bail reforms require judges to use the “least restrictive conditions” necessary to ensure their return to court.
Reformers argue that in many of these cases, judges should put defendants on what’s known as “supervised release,” requiring that they check in with authorities and access social services, such as housing and job training programs. Recent research on supervised release in New York City found it’s equally effective as bail in ensuring that defendants return to court.
As the number of deaths has mounted at Rikers, the city’s Correction Commissioner, Vincent Schiraldi, has urged courts to use alternatives to bail.
"Please, please use supervised release," he begged at a Board of Correction meeting earlier this month.
“What’s the Judge Supposed to Do?”
In the case of Segundo Guallpa, the city’s algorithm for flight risk recommended he be released, according to a court transcript. He had lived in the same home for the past decade and a half. He wasn’t going to run away, his defense attorney argued at the arraignment hearing. All his ties were in Queens.
But given the nature of his domestic violence charges, which included strangulation, Linehan, the former prosecutor, said most judges would be hesitant to grant release of any kind, regardless of what the law or the algorithm says.
“In a domestic case, everybody is terrified that the wife is going to get murdered,” he said.
The system, as it currently exists, would never have paid for the solution Guallpa’s wife wanted—a private rehab facility for him to live in, far away from his family’s home.
“So what’s the judge supposed to do in that situation?” Linehan asked. “The only thing he’s thinking is, ‘If I let this guy out, he’s going to go kill her.’”
While in custody, Guallpa tried to call his wife. She didn’t answer, so he left a voicemail. “‘Forgive me, I didn’t know what I was doing,’” Gualman recalled him saying.
It was the last time she heard from him. Eleven days after his arraignment hearing, the 58-year-old took his life inside his cell on Rikers Island.
“I didn’t want this to happen,” Gualman said. “Had I known what I know now, I would have never called the police.”
Gualman says the system isn’t fair. Had her husband had money, he would have been released. He could have paid to get help. He would still be alive.
“A humble person, who has no money, cannot pay that,” she said. “So he pays with his life.”