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Borrello: Give Judges More Discretion

State Sen. George Borrello, R-Sunset Bay, wants to give judges more discretion to set bail while also requiring more regular hearings for those who are required to post bail.

The county’s state senator has introduced A.8987 in the Senate to amend the state’s Criminal Procedure Law. Borrello’s proposal would allow judges to take into account a defendant’s flight risk to avoid prosecution, the risk of failing to appear based on a person’s prior criminal convictions or prior failures to appear in court, and the danger a person poses to community safety.

Borrello’s legislation also requires judges to review the status of every defendant that is being held pending bail on a regular basis to ensure that defendants are not incarcerated for an extended time period simply because of an inability to post bail. These scheduled reviews would occur every 4 weeks for Class A misdemeanors, every 6 weeks for Class E felonies, every 8 weeks for Class D Felonies, every 10 weeks for Class C felonies, and every 12 weeks for Class B Felonies.

“By eliminating all bail for hundreds of serious crimes, many dangerous criminals are released back onto the streets within hours after being arrested. The stories abound of these criminals then committing other crimes while awaiting trial. Without any bail to ensure that they return to court, many criminals simply skip their court appearances. Not surprisingly, the number and severity of criminal activity has exploded across New York State, with double digit increases in violent crime,” Borrello wrote in his legislative justification. “This legislation would reinstate judicial discretion in imposing bail after considering the defendant’s flight risk, the seriousness of the crime, and the danger to others and the community. These standards are similar to the bail standards used successful in federal criminal courts for many years.”

Earlier this year the state Legislature approved, and Gov. Andrew Cuomo signed, revisions to the 2019 bail reform laws that added 15 new bail-eligible categories while also giving judges the option to impose new conditions on defendants awaiting trial who aren’t jailed, such as requiring them to surrender their passport or mandating that they refrain from contact with certain victims or witnesses to their alleged crimes.

Judges can refer defendants to pretrial service agencies for mandatory treatment or counseling, but the law makes clear that the accused person doesn’t have to pay for any of those services.

Neither the 2019 nor the 2020 bail reform statutes included the ability for judges to base a bail amount on a defendant’s possible threat to public safety. According to the Manhattan Institute, New York is the only state to enact bail reform without allowing judges to consider a person’s public safety risk when deciding whether or not to release the person.

“Allowing New York courts to consider the dangerousness of a criminal would bring New York state in line with the rest of the nation,” Borrello wrote. “New York is current the only state in the nation that does not allow judges to consider public safety when releasing dangerous criminals. The Supreme Court has repeatedly ruled that pretrial detention on public safety grounds is constitutionally permitted.”

One of the arguments to reform the bail process in the first place was the burden that bail could place on the poor. Borrello’s proposal would address such concerns by requiring courts to revisit cases based on the seriousness of the alleged crime. Bail orders would be reviewed every four weeks for class A misdemeanors, every six weeks for class E felonies, every eight weeks for class D felonies, every 10 weeks for class C felonies and every 12 weeks for class B felonies.

“To ensure that the defendants are not held in jail pending bail for an unreasonable amount of time, this legislation also requires courts to routinely review the status of any pre-trial detainees to ensure that they should remain in jail pending trial,” Borrello wrote. “Thus, the legislation balances the need to protect the public with the need to ensure that poor defendants do not remain in jail for extended time periods while awaiting trial.”

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