“The Hole In The System”: What Tiffany Harris’s Case Really Says About Bail Reform

On the last Sunday morning in December, a 35-year-old woman left her Prospect Heights apartment building for a museum trip with her two young children. As she walked with the kids, she saw a stranger a few feet away on the sidewalk who suddenly got in her face.

“She was directly in front of me and she punched me in the face with a closed fist, very hard,” the woman said. “It was extremely painful and really shocking. And I basically took off running, dragging my son with me, screaming.”

The victim’s husband was nearby getting the car, and called the police. Her eye was quickly swelling and turning purple. The police took her to an ambulance. As they drove to Methodist Hospital, she said, the medics seemed to know a lot about what happened.

“The EMTs immediately said, ‘That's Tiffany Harris,’” she stated. They were referring to the 30-year-old woman arrested for slapping three Jewish women and making anti-Semitic curses in Crown Heights, who was released by a judge one day earlier. She was in the news.

“They showed me a picture from The New York Post. And I said, ‘Yes, that's her,” she added. “The very, very nice nurse practitioner who treated me really knew her because she's at Methodist a lot, I guess.”

Harris had been released a day earlier because the slapping charge wasn’t considered violent enough to be eligible for bail. Nor was this second arrest in Prospect Heights, so she was released with supervision, meaning she had to check in with a caseworker every other week. There were no such conditions after the first arrest.

“I was pretty shocked that she had been let out,” the victim told Gothamist/WNYC. “And I was pretty shocked that she was let out again after her arrest for, for my assault. Because it seemed so clear to me that she was going to hurt somebody else and that she was a danger to the community.”

The woman doesn’t want us using her name to protect her identity, given all the attention the case is getting—a few weeks after the assault, she still had a fading purple crescent under her eye. But in her only media interview since the incident, her questions reveal problems the criminal justice system continues to have in finding solutions for defendants with mental illness who may be prone to violence.

"The fact that bail reform has taken the hit and has been the scapegoat in this, and that this has been used as sort of a poster child for that, has been upsetting to me,” the woman said. “Because I don't think it addresses the real issue and the problem with her having been out after the first assault, the problem with her having been out after my assault."

The woman added, “I don’t think that she should have been out, but it’s not because of how much money she has. And so the hole in the system was there before bail reform, the hole in the system is still there.”

The Danger Threshold

To the Prospect Heights victim, Tiffany Harris seemed like an obviously dangerous person. But that’s not how she was treated by the criminal justice system—before and after bail reforms went into effect.

Only defendants charged with what the state considers violent felonies are eligible for bail under the new law—crimes like murder, rape, or stabbing. Harris didn’t meet that criteria. After her first arrest in December, she was charged with assault in the third degree and attempted assault, both misdemeanors. She was also charged with a hate crime, a low-level, non-violent felony.

Yet even before the bail law changed, defendants accused of misdemeanor assault in the third degree were released on their own recognizance—with no conditions—almost 90 percent of the time.

When a defendant appears at arraignment, the judge considers the severity of the charges and whether the suspect poses a risk of not returning to court. Those with no risk are released on their own recognizance. Risk of flight was always the standard in New York, unlike most other states (including New Jersey) where judges look at whether the defendant poses a danger to the community. When there is a risk of flight, New York’s new bail law requires judges to impose the least restrictive means of ensuring the defendant returns to court.

To assess that, New York City uses a tool that looks at a defendant’s employment, income and community ties. Miriam Popper, Executive Director of Diversion Initiatives at the Mayor’s Office of Criminal Justice, said this algorithm also includes a limited snapshot of their criminal history.

“Whether there have been two or more bench warrants in the last five years,” she explained. “If they've had a misdemeanor or a felony conviction in the last year, misdemeanor convictions in the last three years.”

Harris had prior arrests, but she wasn’t considered a flight risk. Her former lawyer, Stuart Birbach, said he represented Harris in about eight misdemeanor cases in Brooklyn over two years. He said they were eventually dismissed or resolved in her favor. None involved hate crimes, or took place in Jewish communities. And he said there were no open warrants.

But after her first arrest in December, the court missed other red flags about Harris. Gothamist/WNYC obtained a court transcript from one year earlier, on December 3, 2018, when she missed an appearance in Brooklyn’s criminal court. In the transcript, Birbach told the judge he didn’t know where she was. “Ms. Harris, unfortunately, has had a number of hospitalizations in the last few months,” he said, adding that she had “psychiatric attention” but didn’t want to take her medication.

A Missed Opportunity

Fast forward a year later. Three days before the December assault in Prospect Heights, Elyse Maister, 31, was leaving a Hanukkah party when she ran into some friends, Orthodox Jewish women, in Crown Heights. Though she describes herself as no longer Orthodox, Maister said she was dressed in a long skirt and coat like the other women.

As they walked together a few minutes after midnight, she said they were crossing a street “and all of a sudden I felt a blow to the back of my head.”

Maister didn’t see the assailant but a couple of friends ran after the woman. One told Maister the suspect said, “Fuck you, Jew.”

Police came and arrested Tiffany Harris. They charged her with assault and hate crimes for allegedly slapping three Jewish women in the neighborhood that night, all within a few blocks. Maister saw the suspect get arrested.

“She seemed distressed in some way,” she recalled. “I'm not a mental health professional, so I can't give an exact assessment. But she didn't seem well to me.”

On New Year’s Eve, after the second assault in Prospect Heights, an extra court hearing was scheduled after concerns were raised about Harris’s conduct at the agency where she was required to check in for supervision. It’s not clear who contacted the court—the Brooklyn DA, the supervised release agency Brooklyn Justice Initiatives, and the Mayor’s Office of Criminal Justice all deny placing a call, despite a media report claiming Mayor Bill de Blasio intervened.

Harris was represented by Lisa Schreibersdorf, executive director of Brooklyn Defender Services. Schreibersdorf and Amanda Levering, program director at Brooklyn Justice Initiatives (BJI) both said Harris had complied with her release condition by checking in with the agency. There was some physical contact with the staffers, but Levering said it wasn’t enough to make anyone feel unsafe.

Levering also said Harris was mistakenly told to come back later than she should have been for someone with her level of supervision. The judge ordered another hearing on New Year’s Day for Harris to be properly informed of the terms of her supervised release.

At that next hearing, however, the Brooklyn DA disclosed a new red flag they hadn’t mentioned before: that Harris was arrested in July for allegedly pinching people on the street. It also came out that her “minimal contact” with a BJI social worker included “slight pinching.”

At this point, the Brooklyn DA’s office asked the judge for a mental competency exam, to determine if Harris is fit for trial. Her attorney that day, Jacqueline Caruana, argued this wasn’t necessary. She said Harris could meet with a social worker at the supervised release agency, BJI.

Caruana also suggested hospitalization, which she called a more “humane solution” than a mental health exam that could have involved being held at Rikers Island. The judge, Joseph Gubbay, noted the two assault cases within 48 hours and ordered that Harris be admitted to a hospital for psychiatric treatment to see if she posed a threat to herself or others.

Both victims we interviewed wanted to know why this didn’t happen sooner.

Barry Kamins, a retired Supreme Court Judge who presided in Manhattan, said it’s hard to get inside the head of another judge, but arraignments happen quickly, within just a few minutes.

It’s often hard to know if a defendant has a mental health condition that warrants something as severe as an involuntary hospitalization.

“Defendants appear all the time,” he explained. “And their appearances can be radically different each time. Sometimes, if they’re taking their medication, they can appear lucid and fine. And if they’re off their medication the next time they can appear disoriented and in need of some type of treatment.”

And judges don’t see old court transcripts like the one we obtained. The Brooklyn DA could have dug deeper after Harris was arrested. A spokesman declined to comment about why they didn’t. But legal experts said prosecutors wouldn’t have asked for more information with a misdemeanor charge and a defendant who wasn’t considered a flight risk.

“As a former defense attorney, you work with so little information at the moment of arrest,” said Insha Rahman, Director of Strategy and New Initiatives at the Vera Institute of Justice, which supported bail reform. “It's a failing of the system and how it's set up so that what we're responding to is just the level of severity of a charge and not to the person in front of us.”

More Options For Mental Health Resources?

After the Harris case made news, Democratic State Senator Anna Kaplan of Long Island sponsored legislation that would make it easier for judges to order a mental health evaluation when a judge can’t set bail. Family members and psychologists could petition a judge. If treatment is warranted, Kaplan said a judge could require that in exchange for release.

“Those people will be put into a mental healthcare instead of street, where they can continue getting the help they need so they wouldn’t pose a threat to the community,” Kaplan said.

Supporters of bail reform question whether this is overreach. Elizabeth Glazer, Director of the Mayor’s Office of Criminal Justice, said, “The criminal justice system is just not set up to, and is not intended to, administer or monitor or assess for mental health services.”

She said supervised release agencies, which have their own social workers, can encourage defendants to access mental health services while they’re awaiting trial. The city also put more funds into outreach and services in its plan to close the jail complex at Rikers.

But Harris’s case suggests judges may be using tools they were less likely to try before the bail law changed. Gothamist/WNYC learned that in January, judges at the city’s criminal courts ordered hospitalization for three defendants, including Harris, according to the New York City Sheriff’s Office, which executes these civil commitments. Criminal court judges ordered hospitalization for defendants only seven times in all of 2019, and six times in 2018.

It’s hard to draw any conclusions from one month’s worth of data. But Kamins said it may signify “an increasing realization by judges that people with serious mental health issues belong in the mental health system and not in correctional facilities.”

Lisa Schreibersdorf, of Brooklyn Defender Services, acknowledged Harris needed help, “whether that was going to be an inpatient treatment in the hospital or outpatient treatment, if that was adequate.”

She declined to reveal more about her client’s life or background, but said being hospitalized is far preferable to jail, where she could be “faced with violence, including rape and other horrible things that happen in Rikers Island.”

The two victims who spoke to us agree jail wouldn’t have helped Tiffany Harris and said they wanted another way to keep her off the street.

While Maister said she understood why some politicians are now pushing to make hate crimes eligible for bail, she didn’t support that measure, because “perpetuating a system that just really just disadvantages poor people and can exacerbate tensions, won't actually do anything long term to make everything safer."

“One thing I've really been grappling with is I don't I don't think it's right to punish people who need help,” said Maister. But she added, “we have to keep people from hurting other people.”

Harris could still face jail. She is now eligible for bail under federal law, because the Trump Administration has intervened in the case with its own hate crime charges. For now, she remains in the hospital until a doctor decides she’s well enough to be released.

Beth Fertig is a senior reporter covering immigration, courts, and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.