Last week the topic of this column was the future of town justice arraignments in local criminal courts. This week the subject is the reform – read end – of bail for most crimes in New York. The main purpose of an arraignment is for a judge to explain the charges brought against the accused, explain their constitutional rights and to ensure the person charged will return to the court for future proceedings.
The most common way to ensure a released person returns to court is for a judge to set cash bail. When a judge sets the dollar amount of bail on a defendant, it is not punishment. The amount is usually commensurate with the crime charged, but judges may set whatever amount they wish taking into consideration many factors. There are situations when bail in the amount of $250 might as well be $1 million to an impoverished defendant.
There is a trend sweeping the nation for the majority of defendants to be released with no bail in most circumstances. New York State is sure to soon follow. Our governor already called for the elimination of monetary bail for misdemeanor and nonviolent felony offenders.
Here’s a list of some notorious misdemeanors in New York that a first time offender would likely be released in their own recognizance if bail reform is instituted the way many want; Stalking 3rd degree, criminal obstruction of breathing, sexual misconduct, cemetery desecration, killing or injuring a police animal, 1st degree juror tampering, and inciting a riot to name a few.
Under our Constitution’s 6th amendment, everyone is presumed innocent until proven guilty. That presumption has nothing to do with a person’s bank account. Also under the 6th amendment is the right to a speedy trial. Most people in our jails know if they waive that right to a speedy trial, and just bide their time, attorneys will likely plea bargain the charges to “time served” and they’ll be released.
In Dutchess County, aside the Hudson River north of New York City, Supreme Court Justice Maria Rosa has ordered all courts in her county to consider a defendant’s ability to pay when setting bail. That ruling is only for Dutchess County.
When considering ability to pay, most people immediately think of a poor person not able to come up with $100 cash. What about the other half of society? If considering ability to pay equally, a wealthy person’s bail should be set much higher than others charged with the same crime. That doesn’t sound fair either.
Our neighbor state, New Jersey already instituted bail reform a couple of years ago reducing inmate jail populations substantially. But their system of pre-trial release is way over budget and breaking the bank in costs. In New Jersey they conduct a risk assessment of each person, and then release them, relying heavily upon expensive ankle monitors. They quickly learned defendants with mental health issues and addictions were difficult to monitor between court dates even with ankle location transmitters. However, the people most upset in New Jersey are the bail bondsmen whose business has all but dried up.
The federal court system also does risk assessment. Every defendant is evaluated at a detention hearing within three days of arrest for risk of flight and risk or danger to the public. If either or both are found, the defendant is detained without bail. If neither is found, a dollar amount of bail is set but it’s usually unsecured, meaning the defendant makes a promise to reappear with no cash up front and is only required to pay if they miss court. The federal system seldom asks about a defendant’s financial condition and ability to pay bail. The federal system of blind justice isn’t dumb; they know the super-wealthy drug king-pin type is always a flight risk, so they get locked up pretty regularly.
The ankle bracelet location transmitter is not a cure-all solution. They require constant monitoring and are often tampered with and defeated. The most egregious example of dependence on an ankle bracelet took place in Syracuse in 2013 when a federal sex offender awaiting trial was released wearing an ankle bracelet. He was able to remove it, leave it at home and travel to Clay, NY where he murdered Lori Bresnahan and raped and murdered her 10-year-old daughter.
It is a bit worrisome the push for no bail in New York State is all about the person committing crimes and awaiting trial. There needs to be a loud, collective voice to remind our legislators that protecting the public is also a reason for requiring bail.