On the night of Friday, Oct 1, New York State Assemblymember Emily Gallagher took a seat in the second wooden pew in the audience section of a quiet courtroom. She was there, along with fellow legislator State Senator Jabari Brisport, to observe “night court,” or the arraignments of people charged with crimes in Brooklyn Criminal Court. As people began to come before the judge in handcuffs, the legislators could hear screaming and crying coming from a room out of sight, to the right of where the judge sat. These were the screams of a man who was waiting to be arraigned—“a fitting soundtrack to our night,” Assemblymember Gallagher told me grimly.

Gallagher and Brisport represent districts in Brooklyn that overlap slightly, ranging from Greenpoint and Williamsburg in the North to Red Hook and parts of Sunset Park in the South. They are two of a dozen elected officials, most of them progressive state legislators, who have watched arraignments throughout New York City in the last ten days. This ongoing courtwatching, coordinated by Neighborhood Defender Service in partnership with other public defender offices in the city, is an effort to get public officials to learn about, and publicize, the roles of District Attorneys and Judges in sending people to Rikers Island. 

Eleven people have died at this notorious, sprawling jail complex this year; and nearly 6,000 people sit in cages there each day, many of them because bail has been set at an amount they cannot afford. The legislators know that each time bail is set, it is because an Assistant District Attorney (“ADA”) has requested bail, and a judge has granted that request. They want to see that process for themselves—to witness the bureaucratic ritual that paves the way for the horror of Rikers island—and to share publicly the cumulative impact of rote legal statements by ADAs on the bodies of Black and Brown New Yorkers .

Assemblymember Gallagher had herself observed (and then written about) the conditions at Rikers Island less than two weeks earlier, when she and other visiting legislators saw people piled into cages full of feces, urine, and cockroaches; forced to go to the bathroom in plastic bags; and denied food and medical attention. The legislators even saw a man attempt to kill himself in front of them. The sights, sounds, and smells were traumatic and unforgettable; Gallagher says that she has not had a peaceful night of sleep since.

In contrast to the acute pain and suffering on Rikers Island (and at other jails and prisons throughout the country), night court can seem mundane. It is hard to hear. The Assistant District Attorneys recite the charges, referring to the numbers in statutes without explanation, and decisions are made within minutes or even seconds. Yet it is these decisions, especially around bail, that maintain the continuum of violence of the criminal system—violence that begins when police decide to arrest someone and can end with death and misery in jail or prison.

As they observe arraignments, the legislators have been tweeting what they see from benches traditionally occupied only by family members of people who have been arrested. (Or, sometimes, these benches are empty: on Tuesday night, the only observers in Manhattan night court were three state legislators.) On the night Gallagher and Brisport sat in on Brooklyn arraignments, every person they saw go before the judge was a person of color. They observed Judge Santacroce, a former prosecutor who is among the ten judges who set the highest rates of bail  in the city in 2020, set $5,000 cash bail for a man after his girlfriend had made clear that she could only afford $500. The Brooklyn Assistant District Attorney, for their part, had asked for $10,000, double the amount set.

Gallagher tweeted: “Bail is supposed to be about flight risk. This man has never missed a court date and has no priors. This man may now be going to Rikers. Just a random Friday here at night court.”

Legal scholar Robert Cover, in a famous 1986 essay entitled “Violence and the Word,” wrote, “I do not wish us to pretend that we talk our prisoners into jail,” writing that legal interpretations and pronouncements in court are themselves “implements of violence.” Groups organizing on behalf of criminalized communities have long been exposing this aspect of the violence of criminal court—whether it is in the form of court monitoring by the Police Reform Organizing Project or the organizing by Court Watch NYC since 2018 to expose District Attorney behavior in courtrooms. This year, Survived & Punished NY, a coalition of grassroots groups that advocate for criminalized survivors, released a zine in which they used the collective knowledge gained from campaigns inside courtrooms to expose how funding prosecutors, and in particular the Manhattan District Attorney’s office, often leads to harm rather than healing for survivors of gender-based violence. They wrote: “Criminalization, prosecution, and incarceration inherently spreads the violence, rather than solves it.”

Too often, however, routine criminal proceedings either go unwitnessed or are indecipherable to those forced to be a part of them. This allows judges and district attorneys to evade scrutiny, and it ensures the relative powerlessness of people and communities who are most frequently subject to prosecution and caging. In Brooklyn, two public defenders in court on the night Assemblymember Gallagher attended begged her half-jokingly to come back to court—“Can you come here every night?—”because the judge was, to them, clearly being more lenient with legislators watching.

Under the United States Constitution, criminal courtrooms are doubly protected as a domain of public observation, through both the First Amendment and the right to a public trial. They are, in theory, the very epicenter of public “justice.” And yet, the more that the events inside  criminal courtrooms are exposed, the less it seems, even to our lawmakers, that they are spaces in which justice can ever be possible at all. 

On the morning of October 6, many of the elected officials who had observed arraignments gathered in front of Manhattan District Attorney Cy Vance, Jr.’s office for a press conference, most having signed a letter collectively demanding that the city’s five District Attorney offices stop requesting bail in all cases. During the press conference, Assemblymember Zohran Mamdani, who had visited night court in Manhattan the evening before, pointed at the courthouse: “They are throwing New Yorkers into cages on Rikers Island in our name!” The signs held by activists behind these officials offered an even sharper version of this message: Bail is Murder. Torture Island. Rikers = Death. Free Them All.

A number of legislators at the press conference spoke of the collective responsibility for the death and suffering of poor Black and brown people in the city’s jails. To be sure, the New York legislature should shoulder its own share of the blame, having rolled back bail reform in April 2020. But the legislators’ acts of courtwatching, echoing the collective practice of courtwatching groups around the country, may also help us see the suffering at Rikers not as extraordinary violence, but as the inevitable and ordinary violence of the criminal system. It is violence that can be too easy to miss, even when it is right in front of our eyes. 

Mariame Kaba, a co-founder of Survived & Punished, helps point a way forward, one in which we marshal our collective responsibility to find means other than criminalization to keep people safe. As she has said: “When something can’t be fixed, then the question is: what can we do instead?”