A motion filed by public defenders in Manhattan Supreme Court accuses Mayor Eric Adams and the NYPD of using sealed criminal court records in a political move meant to argue that bail reform was causing a rise in repeat crime.
The case, filed by attorneys from public defender group the Bronx Defenders and a private firm, centers around an August press conference at which Adams and NYPD Commissioner Keechant Sewell lamented judges’ inability to send repeat offenders to jail given bail reform laws, and highlighted 10 repeat criminals deemed “the worst of the worst” repeat offenders. The news conference was previewed in The New York Post that morning, in a story headlined "10 career criminals racked up nearly 500 arrests since NY bail reform began," and was followed by other reports tying repeat offenders to the failure of bail reform.
“Our criminal justice is insane,” Adams said at the press conference, referring to a “wave of recidivism.”
Yet in an ironic twist, all 10 of the unnamed offenders cited in the press conference were, in fact, eligible to be held on bail, according to the Bronx Defenders. Despite New York state bail reform laws that eliminated the use of cash bail for most misdemeanors and some nonviolent felony charges, people charged with crimes while out on parole or probation – or those who have pending felony charges or convictions – are eligible for bail. And based on the information provided by the NYPD on these 10 people, all fall into at least one of these categories, the attorneys said.
Now, the lawsuit argues that what the NYPD did in releasing information on the “worst of the worst” was illegal. A hearing on the issue was set for this week, but has been moved to February.
Arrest records are automatically sealed in New York state if the charges are resolved in a defendant’s favor, like through dismissal, acquittal at trial, or a downgrade to a violation. Law enforcement agencies can ask judges to break the seal, but easily accessible police databases also show limited information about prior sealed arrests.
“The NYPD is still able to do their policing function without having to trounce people’s civil rights by using all of these sealed records that they're not legally allowed to,” said Niji Jain, a plaintiffs’ attorney with the Bronx Defenders, which in 2018 filed the initial class-action lawsuit against the NYPD on behalf of the more than 3.5 million people who have sealed NYPD records.
Last year, the Bronx Defenders won a preliminary injunction forbidding officers from accessing sealed records for investigations without a judge’s order, and ordering changes to its systems in order to prevent such use. The NYPD also agreed to instruct its officers not to release information about sealed arrests to the media. Despite that, sealed information about arrests — including the charges faced and the borough where the crimes are alleged — became a centerpiece of the August press conference, which the Bronx Defenders argued violated the injunction.
The bail reform controversy has been bubbling in the city since two state laws signed in 2019 sought to change a decades-old system in which poor people are forced to stay in jail while awaiting trial while wealthier people facing the same charges could post bail and get released.
Adams is critical of bail reform. Arguing that bail reform was leading repeat offenders to commit crimes and quickly return to the streets, Adams successfully lobbied the Legislature to make tweaks to the reforms earlier this year.
The latest state report on the effects of bail reform, however, shows rearrest rates are now about the same as they were before bail reform went into effect.
In order for Adams and police to come up with the list of the 10 worst repeat criminals, the plaintiffs in the case estimate that they illegally accessed more than 400 sealed arrests.
During the August press conference, Adams himself acknowledged that city attorneys wouldn’t let him state the names of the 10 people in his report: “Trust me, I want to. You know, sometimes I don’t know why we hire lawyers, you know?” But officials did release information on locations, charges and dates of their sealed arrests.
The plaintiffs call the press conference a “publicity stunt” that violated people’s rights. They are asking the judge to order police not to include sealed arrests, which are accessible in 14 police databases, when disclosing someone’s criminal history. They also want the judge to fine the NYPD $6,000 for its alleged violations.
The NYPD declined to comment on the pending litigation. But attorneys representing the NYPD said in a court filing that it did not violate the judge’s injunction: “It is undisputed that the datasheet provided to the media contained no names nor other personal identifying information of the 10 individuals. And in the final use of the data, defendants did not intend to provide the names or information sufficient to learn the names of any of these 10 individuals.”
While city attorneys acknowledged that the court mandated that the NYPD stop using sealed records for investigative reasons, they also said the agency is not precluded from “compiling and disclosing data for purposes of influencing the Legislature” to roll back bail reform.
In response to questions about the allegations by the plaintiffs, Adams' press secretary Fabien Levy told Gothamist in an email that "no sealed information was used during the press conference.”
In a second story about the repeat offenders, the Post was able to cite one individual by name, saying he had been arrested 101 times, largely for shoplifting. The story cited “sources” who identified the man. His mother was named and quoted, which, according to the plaintiffs, further damaged his reputation and violated his family’s privacy.
Out of 101 arrests cited at the press conference, the man had 15 convictions and five open cases, meaning 81 would have been sealed and should have remained secret, according to the plaintiffs’ legal filing.
“The NYPD shouldn't have had access to those arrests, they shouldn't have used those arrests to compile this report, they shouldn't have given the report to the media, and they shouldn't have been talking about all of these arrests in a press conference,” Jain told Gothamist. “And all of that together created this frenzy of interest.”
Like Adams, the Post often connects crime to bail reform. In the first 16 months after bail reform went into effect, the paper mentioned bail reform more than 400 times, almost always in a negative light, according to an analysis by WNYC’s "On The Media."
The Post’s front-page after the August press conference was headlined “10 PEOPLE, 945 DAYS, 485 CRIMES (and most are still free).” And even though the article didn’t explain whether these 10 people were released due to bail reform, a blurb underneath the headline referred to “‘no bail’ laws that allow recidivists to keep terrorizing businesses and residents.” The article added: “Two of the defendants are actually accused of embarking on lives of crime in the wake of bail reform.”
In a court filing, the NYPD said it had opened an investigation to determine whether an officer had disclosed the identity of one of the recidivists to the Post.
The reference to sealed records in the press conference also provided fodder for Republican Lee Zeldin's 2022 gubernatorial campaign, in which he pledged to roll back such reforms. Zeldin tweeted the Post's story in question about the 10 “career criminals,” arguing that it proved that Manhattan District Attorney Alvin Bragg should be fired.
The 1976 law that created requirements for sealed records was intended to protect individuals from “adverse consequences merely on the basis of an accusation,” according to then-Gov. Hugh Carey. Part of the reasoning behind the law was that arrest records had a disproportionately adverse effect on non-white people.
Since that time, the NYPD has amassed more than 6 million sealed records covering about 3.5 million people — who are disproportionately people of color, according to Jain. If an officer uses a database to find a sealed arrest, Jain said, it could change how the officer investigates and interacts with an individual — maybe a ticket becomes another arrest, for example.
But John Bandler, a former New York state trooper and prosecutor in Manhattan, said officers investigating suspects have an interest in getting information on criminal backgrounds from sealed records to help suss out patterns. Bandler said the irony is that it’s easier for police to access information on a crime if there was no arrest at all. If there’s an arrest and no conviction, then the case is sealed, and “it gives an extra amount of protection for that underlying act.”
“We want to pick a balance,” said Bandler, now a professor at John Jay College of Criminal Justice. “Just because the cops arrested someone doesn’t mean that they’re guilty, but we should also realize that just because a case is dismissed doesn’t mean the person is innocent and it’s not worthy of examining things.”