Bail Reform: Well Intended, Poorly Thought Out

As a retired City Court Judge, I see two major problems with criminal bail in New York State in 2022.

The first problem goes all the way back to 1971. A Republican State Assembly and a Republican State Senate passed a bail reform law, signed by the Republican Governor, making New York the only state that prohibits judges from considering the defendant’s dangerousness or threat to public safety in setting bail. Judges are to set bail only to secure the defendant’s return to court for future proceedings.

The practical result of this was to compel most judges, when confronted with a defendant they considered a threat to the community or to a particular individual, to set bail in the guise of concern over the defendant showing up in court as ordered.

The second problem was the Bail Reform enacted with the State budget on April 1, 2019, which nearly prohibited cash bail for most crimes under New York Law.

A major purpose of bail reform in 2019 was to prevent young, low income, males of color from being treated differently than other people charged with the same kind of crime. The recurring image of a young man of color, charged with a minor crime, languishing in New York City’s Riker’s Island simply for being unable to make bail and becoming “lost” in the system was a tragic one.

However, as the saying goes, bad facts make bad law. Supporters of bail reform argued that bail reform would allow low income people to remain in their homes with their families and jobs maintaining stability in low income communities. In my experience on the bench, however, most criminal defendants were male between 18 and 29; most were not employed and most were not in a stable family situation. Setting bail and not making bail for these young men meant little to their work or family lives.

Two fundamental flaws marred the 2019 bail reform law.

First, some downstate legislators had become more concerned with some biased judges rather than with criminal defendants being back on the streets of their neighborhood within hours of their arrests.

Second, the State Legislators in 2019 made a hasty, ideological decision, rather than develop thoughtful bail reform legislation by carefully and seriously listening to the NYS Unified Court System, the District Attorneys across New York and the state and local police agencies and county sheriffs.

Prior to April 1, 2019, the judges in New York were to look at certain statutory factors before using their professional judgment and discretion on whether bail should be set for a particular defendant.

The NY State Legislature in 2019 took that judgment and discretion away from judges. The Legislature instead gave judges a list of criminal charges that could have bail set. If the crime charged was not on that list, the judges could not set bail, no matter the criminal record of the defendant or the court’s own experiences with the defendant.

Our own Supreme Court Justice, Robert H. Jackson, wrote in 1942, “Chaos serves no social end.” Defendants, who repeatedly are arrested for “minor” crimes such as shoplifting or harassment, are immediately released on appearance tickets with no bail. They then view the criminal justice system as a joke. They are back on the streets creating more chaos.

In the 2019 bail reform, almost no criminal misdemeanors made the list of crimes for which bail could be set by judges. In fact, very few felonies made the list. In particular, almost all drug charges suddenly were deemed either “victimless crimes” or looked upon as the defendant needing treatment, rather than bail and possibly jail (where locally, drug addicts began their treatment in the Chautauqua County jail with the help of dedicated mental health and drug addiction counselors).

The political backlash from both Democrats and Republicans led the State Legislators to make some changes for the better in early 2021. Some additional crimes were added to the list that Judges could impose bail on. With these changes, as a City Court Judge, I felt I could better protect the community. The overall concept of giving judges very little discretion, however, was preserved.

With the new Democratic Mayor of New York, Eric Adams, a former NYC Police Officer, winning office by promising to push Albany to make it easier for judges to set bail on defendants who are a threat to the community, the State Legislature in early 2022, “reformed” “bail reform” again.

With the 2021 and 2022 “reforms” the worst results of the 2019 “bail reform” were reigned in to a significant extent.

Judges, however, should be given back some discretion on setting bail.

The Unified State Court System has the ability to statistically identify judges who show bias or discrimination in setting bail. The Court System must deal severely with these judges.

If the Unified State Court System, which is a huge and expensive bureaucracy, had identified and rooted out bad judges prior to 2019, the New York State Legislature would probably have had no reason to impose “bail reform” at all.

Fred Larson is a 1976 graduate of Yale Law School and a retired Jamestown City Court judge.


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