As a retired City Court Judge, I watched with interest this spring as Governor Hochul demanded giving judges more discretion in setting bail for criminal defendants.

Governor Hochul knows that one issue, Bail Reform/crime, let a little known Long Island Republican come within 3 points of upsetting New York’s first female Governor. She also knows that the Bail Reform/crime issue probably led to the defeat of 4 Democratic Congressional candidates who had been favored to win.

Governor Hochul also knows that the new Mayor of New York City, Eric Adams, a former police officer, ran successfully on a “law and order” platform blasting the 2019 Bail Reform as making the streets of New York a more dangerous place.

The 2019 Bail Reform, among other restrictions, told judges that they had to use the “least restrictive” option to try to secure the defendant’s return to Court. Attorneys for defendants would use this new “least restrictive” language to challenge the decisions of judges. If the judge set bail at $5,000, for example, the defense attorney would argue that either a lower bail of say $500 or releasing the defendant under the Supervision of Probation (RUS), would be the “least restrictive” terms of release. If the judge initially ordered the defendant released under the Supervision of Probation, the defense attorney would argue with the judge that RUS was not the “lease restrictive” option to try to have the defendant return to Court but that the defendant should be simply released on their own recognizance.

Although many in the NY Assembly and Senate in 2023 did not want to further “toughen” the 2019 Bail Reform, Governor Hochul held firm for the elimination of the “least restrictive” standard that was “handcuffing” judges.

Some in New York now complain that the State did not add a “dangerousness” standard for judges to set bail. The lack of a “dangerousness” reason to set bail, however, goes all the way back to 1971.

In 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.

A non-lawyer friend of mine observed that in all the debate about Bail Reform this spring, the underlying issue of biased judges was not ever addressed. I agree.

The 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.

By 2019, 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.

It is well to point out that 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.

The 2023 reform of bail reform gives back to judges much more discretion in setting bail.

Apparently, however, nothing has been done to identify judges who let their own personal bias influence the setting of bail on some category of defendants and not on others.

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.

Every profession has trouble policing and disciplining its own members for bad, unprofessional conduct.

While the Uniform State Court System has the technological ability and great administrative resources to identify and weed out biased judges, it apparently has been ineffective in doing so.

Perhaps an independent and unbiased entity, such as the N.Y. State Comptroller or an Inspector General, could be given the authority to monitor the bail decisions of judges.

If all New Yorkers of all colors, religions, and ethnicity had faith in “equal justice under law” in New York courtrooms the issue of bail would fade away.

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