Latrice Walker: ‘Agitate, advocate, legislate – and if that doesn't work – litigate’

Assembly Member Latrice Walker – one of the architects of the state’s 2019 bail reform law – has been critical of the repeated rollbacks to the reforms, including in the final state budget passed this week. 

Gov. Kathy Hochul remained adamant about tweaking the state’s bail law throughout budget negotiations this year with Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie. In the end, the governor and legislative leaders came to an agreement to remove the “least restrictive means” standard – ultimately giving judges more discretion to set bail for all offenses. This is just the latest set of changes to the state’s bail laws. 

After visiting Rikers Island last month, Walker started a hunger strike to protest further rollbacks to bail. Although changes to bail were included in the state budget, the Assembly member maintains her efforts were not in vain. Walker is gearing up to challenge the constitutionality of the recent changes to bail reform in court, citing a Supreme Court case United States v. Salerno that upheld a federal bail law. City & State caught up with the Assembly member to talk about this year’s budget process, her plans to fight against bail reform and the recent killing of Jordan Neely on the subway. This interview has been edited for length and clarity.

You went on a three-week hunger strike this year to protest changes to the state’s bail reform laws. Can you tell me about that experience?

This year, I was more experienced, but my regimen was the same. I announced at a rally after visiting Rikers Island with my colleagues and hearing of the deaths that had taken place in Rikers Island – which we later learned were 19 deaths last year and 36 within the last few years. Watching people be denied access to mental health care and health care, and witnessing many individuals who are required to sit through education courses – having to do so while chained to a desk. There were generations of individuals who are on Rikers Island; many of which are arrested and detained pretrial and in some instances sentenced to death. So I made the announcement that I was going to begin the hunger strike on April 9, which was Easter Sunday, and that was the day that I began. When you go on a hunger strike, the first three days are the most difficult. That’s when the headaches begin to set in and you feel the hunger pains. After that, it gets easier to cope with. All the headaches never quite go away completely. I drank lots of water, I had the bone broth and that basically is what sustained me – along with lots of prayer. I continued until we passed the budget. 

The approach this year was more formed, I wasn't that afraid, though it's still a very scary thing when everyone is telling you they’re worried about you. I remained committed and dedicated to the process. We saw what the governor initially proposed to do with bail reform to take our bail law to a place where it had never been before with the removal of the return to court as the basis of bail in the state of New York. Over the past few decades, there have been many different governors, and various legislatures who have had criminal justice summits where bail has come up. There's always been this sort of balancing test between the constitutionality of bail and the 8th Amendment and the 14th Amendment. Remember bail should not be excessive or cruel and unusual punishment, it should not be punishment even though so many people have had a rallying cry, in support of preventive detention, which ultimately is what bail has become after this year's budget. It sort of balances up against the conversations that people are having around public safety and we know that the safest communities have the most resources – not the most police officers, and certainly not the highest bail amount. I continued to fight to keep poverty as a means of keeping people detained pretrial out of our criminal justice system. I remain committed to it until the very last moment. So I was very disappointed when we voted on Tuesday.

In your statement explaining your “no” vote on the budget bill that included changes to the state’s bail law you mentioned, “see you in court.” What did you mean by this? Do you believe the rollbacks violate the state constitution in some way?

I believe that the state's rollback violates the United States Supreme Court case of Salerno – where it actually lays out the premise. But in the United States v. Salerno, Justice (William) Rehnquist basically indicates that judges are required to utilize the least restrictive means when ascertaining bail. (Editor’s note: In U.S. v. Salerno, the Supreme Court upheld the 1984 Bail Reform Act. The act allows federal courts to keep someone in jail prior to a conviction if they are deemed potentially dangerous. The court argued that pretrial detention was constitutional because the government’s interest in community safety can outweigh an individual's liberty interest. When City & State followed up with Walker for clarity on why she used this case as an example, the Assembly member provided the following statement: “This case codified the least restrictive means standard with respect to bail. In Chief Justice William Rehnquist’s majority opinion in the Salerno case, he wrote: ‘In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.’ The changes to bail reform pushed by the governor threaten to make pretrial detention the norm, rather than the exception.”) We codified the law, the federal standard, when we did the bail reform act of 2019. We believe many of these rollbacks have led to circumstances where the average amount of bail is higher now than it was before bail reform. The Eighth Amendment of the Constitution provides that bail again should not be cruel and unusual punishment, it should not be accepted. The 14th Amendment provides equal protection for all under the law. We're watching as this is not right-sized justice. There have been lawsuits across the country with respect to the unconstitutionality of bail laws, throughout various states in the country. So we're looking at New York state in that same light at the moment and are preparing for litigation.

Do you think that you will have support from members of your conference and or Assembly Speaker Carl Heastie as you prepare for litigation? Do you see a path forward with the members of your conference on this or is this something that you're going to be sort of tackling alone?

Well, there are attorneys who are experienced in this area who are working and researching and, and conducting their due diligence at the moment. There are colleagues of mine who have expressed their support in this process and who are relentless fighters for fairness, justice and equity. We can't allow it. We can't allow politics to curtail the constitutional rights of New Yorkers. At one point, it appeared that they wanted to make a distinction between felony crimes and dangerous crimes and quite frankly, in our country, you are innocent until proven guilty. We are not a country where we have a trial by bail. We have to remember that these individuals have not been convicted of any crime. They were arrested and they were charged. We know that there are a number of individuals who are behind bars right now, who didn't commit the underlying crime for which they are accused. We also know that when bail is placed unusually high on an individual, it gets used as a tool to coerce plea bargains. People will take these pleas if they are being told – whether it actually happened or not – they'll have an opportunity to go home so they'll take them. Based on all of these circumstances, these are the reasons why we understood and why we knew as a body that our system of bail in the state needed to be reformed. And I have four principles: to agitate, advocate, legislate – and if that doesn't work –  litigate. We have the executive branch, the legislative branch, judiciary branch and so we will utilize all of the tenets of government within our country and within this state to allow for due process and constitutional rights to be adhered to.

In her press conference on the conceptual budget agreement, the governor mentioned media coverage of crime when talking about the changes to bail reform. In response, you put out a statement condemning the governor's admission of headlines influencing policy. What role do you think the media should have in the way legislators and elected officials tackle policy issues?

People rely on the news, and there should be a level of integrity in the word that gets printed and/or over our airwaves. When we’re watching time after time bail reform being inappropriately blamed for any or every crime that took place in our state, it was just wrong. As we were finding ourselves fighting back against the journalism that just was not fact-based. The media has played a huge role in the information highway of our constituents. So we want to always want to make sure that it's truthful, and thought-provoking, but also that it's not misleading the public. Quite frankly, the racist innuendo of it all was hurtful and brought back a level of institutional slavery remembering, because when we hear words such as “dangerous people” or “criminals,” historically those terms have been used to be directed as a characterization and classification of Black and Brown people in America. It was just wrong. 

This week Jordan Neely was killed in New York City when a subway straphanger put him in a chokehold. What is your perspective on what happened and the various responses from city and state elected officials following the incident?

We have seen in many circumstances that because we are not as a state addressing mental health, the way we should be, we are forcing many of these individuals to even get much of the support that they need from Rikers Island – which we know hardly exists even there. Many people are arrested time after time after time again not because they have committed any crime, but simply because they are not receiving the treatment that they deserve. In the circumstances here, we have another person who’s dead this time at the hands of a trained killer, someone who was in the military. The medical examiner ruled that it was a homicide. We know that Jordan Neely needed those services, like so many other individuals. One thing we know he did not need was death. We're watching as the Manhattan district attorney's office is investigating and quite frankly, I hope that he delivers the justice to the Neely family that they deserve. In the Manhattan district attorney's former role in the (state attorney general’s) office, he was responsible for the deaths that took place of individuals who died in police custody. So I know that he has the experience that is required in order to carefully review the circumstances and I hope that he will uphold the law and the medical examiner's report that this was a homicide and charge this individual accordingly.