Editorial: Fix bail laws to give judges more discretion with violent offenders

While their motivation was sound, state lawmakers passed flawed legislation

Often, good intentions come with unintended consequences.

No better example of that can be found in the state Legislature’s well-meaning but flawed attempt to help poor people charged with minor crimes,

The idea behind the elimination of cash bail, one of the state Legislature’s signature criminal justice reforms this year, was to correct the financial inequity in the criminal justice system, in which criminal suspects who could afford bail get released while those who can’t afford even small amounts languish in jail awaiting the disposition of their cases.

That time in jail for the inability to post even modest bail often costs individuals their jobs, which can burden their families, jeopardize their housing, and potentially lead to domestic strife and future criminal activity.

The injustice of the bail system, as it usually does throughout society, falls mainly on minorities and the indigent.

Following the suicide of Bronx teenager Kalief Browder — held for three years in New York City’s horrific Riker’s Island jail for lack of $3,000 bail for stealing a backpack — reformers pushed for changes to the system.

And this year, lawmakers finally passed legislation that eliminates cash bail for all but most major crimes.
The change, for the  most part, was long overdue. The justice system is meant to serve all equally, not provide an advantage for those who can afford better treatment than others.

But as with much of what the Legislature does, the final legislation was rushed through at the last minute and without consideration or input from those most directly involved, The resulting flaws in the legislation now undermine its good intentions.

One such flaw is that judges have no power under the legislation to decide whether a criminal suspect is a danger to the community before sending him out on the street, where he’s might commit similar crimes or go after the people who turned him in. 

None of the other states that have eliminated cash bail have removed that necessary protection. In an editorial last year, we encouraged the state to follow the example set in California, which in August 2018 became the first state in the country to eliminate cash bail as a way to ensure criminal suspects show up for court appearances. 

One element of the California law, which New York failed to emulate, did two things to protect the public.

One is that it subjected bail applicants to review by local courts to determine if they should be released, based on seriousness of the crime, the likelihood of the defendant showing up for court dates, past criminal record and likelihood of recidivism. For those on the fence, they could be subject to regular reporting to a court officer or restrictive monitoring such as an ankle bracelet.

Another safeguard is that for violent offenders for whom no amount of supervision or conditions would ensure the public’s safety or the defendant’s appearance in court, judges could order “preventive detention.” That way, dangerous criminals would be kept in jail awaiting trial, perhaps preventing them from threatening witnesses or committing new violence crimes.

New York’s new cash bail law doesn’t not have such safeguards.

At the very least, lawmakers and the governor should have stuck with a proposal to allow judges to consider “dangerousness” when deciding whether to hold someone in jail before trial. Judges don’t have that power now under existing bail regulations.

But in opening the jail gates to so many individuals charged with a variety of crimes, they had considered giving judges that authority as a safeguard. Ultimately, they didn’t give judges that power, which was a mistake.

In an op-ed that appeared in The New York Post in June, Albany County District Attorney David Soares, president of the District Attorneys Association of the State of New York, said in passing sweeping justice reforms — including elimination of cash bail, speedy trial reform and discovery reform — the Legislature had “transformed the justice system into one in which the only actors handcuffed are judges and prosecutors.”

He said as a result of bail reform, for instance, fentanyl and opioid traffickers can be released back on the streets to flee the country, and burglars could be released right back into the very neighborhoods where they committed their crimes.

How does that help minority communities, he wondered.

Soares also criticized lawmakers for not providing direct funding to support the extra costs associated with the reforms, costs that otherwise will have to be shouldered by local taxpayers.

While their motivation was sound, state lawmakers passed flawed legislation. As a result, they need to do what they didn’t do before — consider more carefully the consequences of their reforms.

Before these changes take effect at the start of next year, lawmakers need to come back to Albany in a special session and fix the problems with the reforms before they have a chance to inflict unintended consequences on the public.

Categories: Editorial, Opinion

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