A Bronx County state Supreme Court Justice says the state Legislature and Gov. Kathy Hochul have created “a confusing mess” of the state’s bail laws.

Judge Jeffrey M. Zimmerman of state Supreme Court in Bronx County, made the argument in a court order issued July 24 that has been mentioned in reports by the New York Daily News and the New York Post. Zimmerman is an acting justice assigned to the state Supreme Court in Bronx County earlier this year. He is New York City criminal court judge appointed by former Mayor Bill de Blasio in 2019.

“Instead of direction, the statutes provide judges with obfuscation and legislative sleight of hand,” Zimmerman wrote in his opinion on the People of the State of New York v. Edward Santiago. “Faced with a constituency that — justifiably, but incorrectly — assumes that the purpose of bail in New York is to protect the community, but unwilling to join the 49 other states and the federal government in explicitly making that so, our legislature has instead, with each successive amendment to the bail reform statutes, allowed judges to consider more factor that actually go to a defendant’s ‘dangerousness,’ while still maintaining that the only purpose of bail is ensuring a defendant’s return to court.”

Zimmerman wrote the opinion in a case involving a man arraigned on two felony complaints. One charged the man with second-degree attempted murder and second-degree criminal possession of a weapon after allegedly firing a shot at a group of three men. The man was also charged with second-degree criminal possession of a weapon after having two loaded firearms two months after the first incident. Eventually the man was charged in a 17-count indictment. Defense attorneys asked Zimmerman not to impose $335,000 property bond or $135,000 cash, proposing instead to release the man on electronic monitoring based on his age (22), lack of prior criminal record, pretrial release score by the Criminal Justice Agency, employment history and family support while setting bail at $12,000 partially secured bond because that’s what the man’s mother could afford. Zimmerman chose to impose a lesser bail than originally recommended, giving his original decision from the bench before releasing a written opinion afterward. That written account contains Zimmerman’s reasoning as he worked through the various changes the state has made to bail reform over the past three years.

The 2019 law eliminated cash bail for misdemeanors or non-violent felonies while giving judges options for offenses that qualified for bail — though Zimmerman said judges had to select the least restrictive of those options to ensure a person accused of a crime returns to court. The state Legislature in 2020 added sex trafficking crimes, crimes involving the death of another person, various strangulation crimes, some assault charges, some vehicular assault charges and some crimes involving sex offender registration and harm to children to the list of offenses that qualified for bail. Bail was also authorized for any felony charge committed while a person is on probation or post-release supervision, any felony committed by a persistent felony offender and most crimes involving harm to a person or property while a person is released while charged with a similar “harm” crime. In 2022 the legislature added theft crimes and two firearm crimes to the list of bail-eligible offenses and allowed judges to consider if a charge caused serious harm to an individual or group when setting bail. Judges also were allowed to begin considering a person’s prior use or possession of guns when deciding bail.

Each of those changes, Zimmerman wrote, essentially say a person who is accused of such crimes is more dangerous to the community than those who commit non-violent crimes even though the state Legislature refuses to change state law to expressly allow judges to consider community safety when setting bail. Bail amendments in 2023 removed the least restrictive alternative requirement — but Zimmerman notes all of the changes over the past three years haven’t changed the underlying purpose of bail, which is to make sure a person accused of a crime returns to court. Ending the least restrictive means requirement was lauded by Hochul as a key change for judges, but Zimmerman said ending the least restrictive means requirement doesn’t help much when considering bail. While the terminology is a recent addition to state law, written as part of the 2019 bail reform law, it has effectively been part of state law under the state constitution because bail has always been focused on ensuring a defendant’s appearance in court. Hochul’s efforts to remove the least restrictive means requirement mean a judge can set bail but has to do so at a number a defendant can secure. That leads to a difficult choice in cases like Santiago’s, where $1,200 bail is what the defendant can afford but is not, in Zimmerman’s view, enough to make sure Santiago returns to court.

“So what are judges supposed to make of a legislative scheme that requires them to set bail for the sole purpose of ensuring a defendant’s return to court, but also requires them, in making that determination, to consider factors that clearly go to dangerousness?” Zimmerman wrote. “The language of bail reform, and amendments thereto, focusing almost entirely on making bail available for more dangerous crimes and criminals, leads to only one inescapable conclusion: yes, judges can consider dangerousness, but only as it goes to the likelihood to return to court. This may seem oddly inconsistent, given the ongoing debate in New York about the ultimate purpose of bail, but it’s the only way to harmonize the language of the statute, as courts are required to do.”