EDITORIAL: Do bail and discovery reform the right way next time

Process for fixing bail and discovery reform should be open and extensive

The state Legislature’s passage of bail reform and discovery reform last year — both the process and final product — was flawed and needs to be fixed.

How should they be fixed? Let’s start with a few basics.

For starters, changes in the existing bail and discovery laws were needed and long overdue.

People without the means to post even modest bail amounts for minor crimes were being held in jail indefinitely, while others who had committed the same crimes but who had the means to post bail were released. The law expressly targeted minorities and the poor.

Those who say we should just repeal the new reforms and go back to the way it was are wrong.

But the new law was not well-thought out, rushed through as part of the state budget process last year.

And as a result, there were some unintended consequences that need to be addressed. There’s nothing wrong with going back and fixing problems that crop up after the initial roll-out of a new law.

Now let’s move to a reasonable compromise by doing it right the second time around, with thoughtful consideration for the rights of the accused and the safety of the public.

We can start by changing the process by which the changes are made.

Already, there have been reports of secret meetings involving the legislative leadership and some of its members to discuss their issues and potential solutions for reforms.

The last set of reforms was effectively negotiated without public discussion and with inadequate input from law enforcement and prosecutors.

It was pushed through in such a manner that some lawmakers, including Assembly Speaker Carl Heastie, have demonstrated even now that they aren’t 100% familiar with the law’s provisions.

If the people passing the law don’t know what’s in it, can we put our faith in their judgment?

There’s no reason for any discussions about revising this law to be held behind closed doors. 

They’re not discussing anything that would violate anyone’s privacy or reveal law enforcement interrogation techniques. The current level of secrecy is just to protect lawmakers from revealing their true feelings and positions.

The public has a right to know how its representatives are thinking and what arguments are being made for and against any changes. 

So let’s get this out in the open.

Next, let’s all concede that there have been hysterics on both sides of the issue since the law went into effect, and agree to stick to the facts.

Yes, there have been cases of criminal suspects who otherwise would have been held on bail being released without bail, and even committing more crimes. 

That was to be expected, given that the new bail reform law specifically expanded the number and types of crimes eligible for release without bail. 

But despite the fear-mongering, the reforms have not created “turnstile justice.”

Most serious and violent crimes are still subject to bail restrictions, even under the reforms.

As New York City and other states have moved away from cash bail and toward supervised release, the number of people showing up for their court appearances has been steady, or even increased.

Suspects aren’t all running off to Canada under the reforms.

And remember, that except for the most serious crimes, many dangerous subjects were able in the past to gain release anyway by posting bond.

As for discovery reforms, one rumor later proven false was that a witness was killed by a gang after discovery information was turned over to a suspect’s defense attorney.

It didn’t happen that way, as the officials who started the rumor later conceded. Spreading that kind of misinformation won’t get us a better law.

Along with opponents of bail reform overstating the number of dangerous criminals being turned loose have been supporters of the existing laws falsely claiming that there have been no consequences to the changes. There have been.

Also, some supporters of the existing reforms have taken to social media to call anyone supporting reasonable changes “racists.”

Disagreeing on a flawed law affecting minorities doesn’t automatically make you a racist. 

Knock off the divisive rhetoric.  It’s not helping.

Finally, let’s give this a fair and open hearing before making any changes.

The concerns and experiences of prosecutors and police need to be heard. Criminal justice advocates need to be heard.

Lawmakers need to examine the provisions of similar laws in other states and evaluate those states’ experiences.

That includes looking into giving New York judges discretion to set bail based on the suspect’s threat to the public and his victims, such as in domestic violence cases.

Lawmakers also need to evaluate the financial costs of the bail and discovery reforms and ensure that local law enforcement and prosecutors have the resources they need to effectively carry them out. 

Those elements were virtually overlooked in the last round of reforms.

There’s a lot of information out there on both sides that needs to be shared with the citizens and debated publicly.

Hindsight is 20-20 for a reason — because we can look into the past more clearly about what we’ve done right and what we’ve done wrong.

New York has a chance to look back and do bail reform and discovery reform right this time.

Lawmakers need to put aside their differences and agree on a process that results in a better law.


Categories: Editorial, Opinion

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