Reform vs. risk

 

Saratoga County District Attorney Karen Heggen is among the local law enforcement officials calling for changes or a delay in implementing New York’s new bail reform law. Photo by Joan K. Lentini

 

EVAN LAWRENCE
Contributing writer

 

Supporters of New York’s new bail reform law say it will end the wasteful and destructive practice of jailing poor people accused of nonviolent crimes.

But critics of the new law, including many of the region’s top law enforcement officials, say the reform effort could pose new risks to public safety by mandating the release of many criminal defendants – and by removing a financial incentive for these suspects to show up in court.

Under the new law, which takes effect Jan. 1, judges in New York will no long be able to impose bail or jail on people charged with most misdemeanors and nonviolent felonies. Defendants in these cases, which account for the vast majority of criminal cases in the state’s courts, will be issued an appearance ticket and allowed to go free until their next court date.
Bail reform advocates say the change is long overdue.

“It’s pretty evident in New York state that we’ve been warehousing people in the criminal justice system that don’t need to be there,” said Melanie Trimble, director of the New York Civil Liberties Union’s Capital Region chapter. “This reform takes them out of incarceration.”

As of early 2019, of the more than 22,000 inmates in local jails across New York, more than 60 percent were awaiting trial. Most of these people were in jail because they couldn’t come up with the funds to post bail, according to the Center for Court Innovation, a nonprofit group that studies the state’s criminal justice system. Those held for lack of bail were disproportionately poor and minorities.

Critics, though, say the new law goes too far in favor of those charged with crimes. They say too many charges will be exempt from bail, and judges will lose the ability to make their own decisions about whether an accused person can be released safely.

“Now a judge won’t be able to put a drug dealer from the Bronx in jail,” even when the suspected dealer is pulled over with drugs and a gun in the car, Rensselaer County Sheriff Patrick A. Russo said.

If the person accused in such a case receives only an appearance ticket, “they won’t show” for a future court date, Russo predicted.

Columbia County Sheriff David Bartlett also has spoken out against the new law, though he acknowledged that the state’s bail system is in need of reform.

“People don’t need to sit in jail -- we get that part,” Bartlett said.
But he said judges should retain discretion to impose bail based on “the severity of the crime.” Some of the charges for which the new law prohibits bail, he said, apply to crimes “where people die,” including criminally negligent homicide, second-degree manslaughter and aggravated vehicular homicide.

 

How bail works
Bail is money that courts collect from defendants. The stated purpose of bail is to ensure that people charged with crimes will show up for their court dates until their case has been resolved. If they come to court, they eventually get their money back. If they don’t show up, or “jump bail,” they forfeit the money.

Supporters of New York’s new law point out that the bail system leads to disparate treatment based mainly on defendants’ wealth -- or lack of it.

Suppose, for example, that Jane and Jake have been arrested on the same charge, and at their arraignments, a judge sets bail for each of them at $1,000.

If Jane has that much money in a bank account, she can pay the court in cash (courts don’t take credit cards), and go home. The court keeps her $1,000 until her case is resolved, whether by dismissal of charges, a plea bargain, or conviction or acquittal at trial. That resolution might take many months, but in the meantime, she’s free to consult a lawyer at their mutual convenience, go to work or school, take care of her kids and keep her doctor’s appointments.

If Jake doesn’t have $1,000 in cash, he can talk to a bail bondsman to see if he can get a bond. The bail bondsman’s fee is 10 percent of the bail, or $100, paid in cash up front. For the remaining $900, the bail bondsman will ask him to put up collateral -- a car, jewelry, house or other investments -- or contributions from friends and relatives. As long as Jake makes his court appearances, he’s free to do everything Jane does. At the conclusion of Jake’s case, the bail bondsman keeps Jake’s original $100 but returns or removes the liens from the $900 in collateral.

In either of these scenarios, of course, Jane and Jake are potentially able to commit new crimes while they’re free.

And if Jake doesn’t have $100, or if the collateral he offers doesn’t satisfy the bail bondsman, Jake goes to jail and stays there until his case is resolved. He is still legally innocent until proven guilty, but unlike Jane, he doesn’t get to enjoy that presumption of innocence.

Bail reform advocates say judges sometimes set bail higher than a person can reasonably afford as a way to keep the person in custody. That unfairly penalizes poorer people, they say.
“Many people have very fragile lives,” Trimble said. “They can lose their house, apartment or job while they’re jailed, when they simply need to show up in court.”

Studies show that people who are jailed for lack of bail are more likely to take plea bargains and receive harsher sentences if they’re convicted.

Marcy Flores, the Warren County public defender, says she regularly sees clients who lack the resources to post bail. By law, only people at or below the federal poverty line qualify for a public defender. For them, “even coming up with $100 can be difficult,” Flores said.

District attorneys have some latitude in how they charge defendants, Flores said. They sometimes “overcharge,” as she put it, if the arresting officer and the prosecutor think there’s enough evidence to support a more serious charge – and if they want a defendant kept on bail or in custody.

For a defense lawyer, working with a jailed client can be difficult, Flores said. Jail visiting hours and inmates’ access to telephones are limited. If she comes to visit a client and another visitor is there, she and her client can’t meet unless the jail has another room available and staff to escort her and the client there and back, she said.

 

New momentum for reform
As with many pieces of legislation enacted in Albany this year, bail reform had been championed in the past by some Democratic lawmakers, but its passage only became possible after the 2018 election gave Democrats firm control of the state Senate for the first time in decades. The Democratic-led Assembly had passed a bill with many of the same features last year, but the proposal never advanced in what was then a Republican-controlled Senate.

The issue never came to a specific vote in either chamber this year, however. Instead, the reforms were included among the many provisions of the state budget that the Legislature passed and Gov. Andrew Cuomo signed for the state fiscal year that began in April.

Bail reform is just one of a package of several criminal justice reforms that were included in the budget. Others include requiring prosecutors to turn over evidence to defense lawyers more rapidly; improving defendants’ access to speedy trials; and updating the process for civil asset forfeitures.

Saratoga County District Attorney Karen Heggen pointed out that the four reforms are intertwined – and that local law enforcement agencies have been given nine months to implement them without any extra state funding or support.

“If you only had to do one thing, it would be a lot,” she said.
Heggen and other law enforcement officials say they fear that by prohibiting the use of bail for many criminal charges, the new law will inevitably lead to the release of some defendants who pose a risk to public safety.

She said there’s no one list of the charges that will no longer be eligible for bail.
“It’s a list by exclusion,” she said.

The bail reform law itself refers to a section of the state penal code that defines violent felonies. Because of the complexities of state law, “it’s not as easy as one would think” to determine whether a given incident qualifies as a violent or nonviolent felony, Heggen said. By some estimates, up to 400 charges may no longer qualify for bail, she said.

Bartlett, the Columbia County sheriff, estimates there are about 200 specific charges that will become ineligible for bail. Besides manslaughter, he said, these would include most sales of illegal drugs, some burglaries and robberies, charges related to child pornography, aggravated cruelty to animals and some assault charges.

“A lot of drug offenses will be appearance tickets,” Bartlett said.
Heggen said she believes the charges that will still be eligible for bail or detention include those covering sex crimes and some domestic violence cases. Domestic violence isn’t a separate category of crimes but applies when a victim and suspect are in a legally defined relationship such as marriage or having children in common, she explained.

 

New Jersey’s example
By reforming its bail system, New York joins several other states that have sharply reduced the use of cash bail, including New Jersey, Alaska and California, where reform took effect in October. Cuomo has pointed to New Jersey’s new rules, which began in 2017, as a model for New York.

In a report issued in April, New Jersey’s court system found that after the state virtually eliminated cash bail, there was no statistically significant increase in crime or in the number of defendants who failed to show up for court. The state’s pre-trial jail population dropped by about 44 percent, or roughly 6,000 people, between October 2012 and October 2018.

From 2014 to 2017, the New Jersey report found, the share of defendants who made it to all of their court dates declined only slightly, from 92.7 percent to 89.4 percent. In addition, the average time it took to conclude cases didn’t change, suggesting that those who didn’t show up for court simply missed a date and weren’t fleeing.

The proportion of defendants who were charged with new crimes while awaiting trial also changed only slightly -- from 12.7 percent in 2014 to 13.7 percent in 2017 – and the report’s authors noted that technical difficulties with the 2014 data meant the small differences between the two years’ figures probably were not significant.

But New Jersey’s bail reform has one major difference from New York’s. New Jersey’s new system established a standard protocol to assess the flight risk and public safety hazard posed by all defendants, regardless of the charge. The report found the protocol was “remarkably accurate in classifying a defendant’s risk” and in keeping the most dangerous suspects behind bars while letting people who posed little risk go free.

In New York’s new system, in contrast, judges will not have discretion to impose bail based on their opinion of a defendant’s danger or flight risk.

In another jurisdiction that reformed its bail system, the city of Philadelphia dropped bail in February 2018 for 25 low-level offenses that account for 61 percent of all the cases in the city’s criminal justice system. At a conference held on the reform’s one-year anniversary, city District Attorney Larry Krasner reported that the new policy had kept 1,700 people out of jail with no increase in the rate of crime committed by those awaiting trial. The percentage of people not showing up for court dates did increase, though Krasner said that could be because of improvements to court efficiency that resulted in court hearings coming closer together, making it more challenging for defendants.

 

Drug crimes at issue
Locally, law enforcement officials say they are most worried about the New York reform’s abolition of bail for suspected drug dealers. Russo, the Rensselaer County sheriff, said many drug dealers are from outside the area and have no reason to return to local courts based on an appearance ticket. The new law has no money to cover the cost of extraditing defendants who fail to return from another county, state or country.

Courts will be able to issue a bench warrant and impose bail for “willful and persistent failure to appear,” Heggen said, though the law doesn’t define “willful and persistent.”
Russo also said defendants who haven’t been able to afford bail under the current system are more likely to be transient and difficult to track down if they don’t show up for court.
In contrast, “people who can afford bail have homes and jobs,” Russo said. “They’re easy to find.”

Judges will still be able to impose bail for most felonies. But they will be encouraged to pursue other ways of ensuring these defendants return to court, such as through electronic monitoring, travel restrictions or a requirement for regular check-ins with a pre-trial services agency. Judges also can order drug and alcohol evaluation and treatment, Heggen said.

The region’s top elected law enforcement officials, nearly all of whom are Republicans, have been speaking out in recent weeks against the bail reform law and the companion criminal justice changes that take effect in January.

Some officials claim the new law requiring prompt disclosure of evidence to defense lawyers could result in the identity of confidential informants and the contact information of victims being turned over to defendants.

Bartlett said the Columbia County Sheriff’s Office arranges controlled drug purchases by informants as part of its efforts to “get dealers off the streets.” Currently his department can be reasonably certain that they can protect an informant’s identity until the case goes to trial -- as only about 5 percent of felony cases do. But under the new law that requires prompt sharing of evidence with defense lawyers, “in 15 days the defendant will have that information,” he said.
Bartlett predicts the result of the change will be that “informants won’t want to cooperate.” (The new law, however, does give judges the power to withhold certain evidence from defense lawyers “when appropriate.”)

Bail reform advocates say the savings from having fewer people in jail will offset some of the costs of the new system, but Bartlett questioned that. Jails have fixed costs that have to be paid whether they’re occupied or not, he said.

Although some sheriffs are looking at other uses for empty jail space, such as homeless shelters or juvenile detention, the Columbia County jail isn’t suited to these uses, he said. Staffing levels are dictated by the state and are out of his control, Bartlett said.

Campaigning for delay or repeal
On Nov. 21, law enforcement officials from across New York took the unusual step of holding eight simultaneous news conferences to express their concerns about the new criminal justice reforms. They criticized the law’s potential risk to public safety, the loss of judicial discretion to take a defendant’s charges and circumstances into account, and the lack of state funding to implement the reforms.

Republican legislators and some Democrats also are pushing back against the changes.
In November, Assemblyman Dan Stec, R-Queensbury, joined Assembly Minority Leader Brian Kolb and several GOP colleagues in proposing legislation to repeal the new bail law. Stec, who voted against the 2018 Assembly bill, cited the case of a local man who was charged with manslaughter and other crimes after a high-speed chase in which a pedestrian was killed. Under bail reform, that suspect would have been let go with an appearance ticket, Stec said in a press release.

“The new bail laws are deeply flawed and were rushed through during budget negotiations,” Stec said.

Assemblywoman Carrie Woerner, D-Round Lake, said in a letter to constituents that she doesn’t support the bail reform because about 80 percent of the felonies in her district, which covers parts of Saratoga and Washington counties, are committed by people who don’t live in those counties. She also voted against the 2018 Assembly bill.

Although she is open to eliminating cash bail for nonviolent offenses and minor crimes, “the bail reform package that was passed goes too far,” Woerner said in an e-mailed statement.
“We should rely on judicial discretion to make informed decisions on bail and release based on the context of the crime and the person who is accused of committing it,” Woerner said. “This law will undercut that process, and I am concerned that there will be serious repercussions for our communities.”

Woerner said she supports a one-year moratorium on implementing the new law.
Republicans have called for a special session of the Legislature in December to reconsider the bail law and other reforms. But given that Democratic leaders who supported the new law control the Assembly and Senate, most observers think new legislative action on the issue is unlikely before the reforms take effect Jan. 1.

 

Risky or overdue?
Some area law enforcement officials say they have already been working to reduce the number of defendants jailed for lack of bail.

 

Washington County District Attorney Tony Jordan is among a host of area law enforcement officials who’ve lately been pushing to delay or stop a planned overhaul of New York’s bail system. Starting Jan. 1, the state is set to eliminate cash bail for most misdemeanors and nonviolent felonies. Joan K. Lentini photo

 

Washington County District Attorney Tony Jordan said his office has reduced pretrial detention by 57 percent since he took office in 2014. It hasn’t cut the county Sheriff Department’s costs significantly, but there also was no decrease in public safety “because of what judges can look at when considering bail,” he said.

Jordan called the state’s new bail reform “a big risk.” Like Russo, he cited cases of people arrested in the county with large amounts of drugs and no connection to the area. Under the new law, such a suspect would be released on his own recognizance.
“Why would he ever come back?” Jordan asked.

He predicted that the cost of finding and extraditing suspects “will be significant.”
Comparing New York’s reform effort with New Jersey’s, Jordan pointed out that, along with granting judges discretion, New Jersey “realized it had grossly underestimated the cost of pretrial services” -- to the point that the program is running out of funds.

“Those are two important differences that will have an impact,” he said.
Bail reform may also hamper attempts to deal with the opioid crisis, Jordan said. In an effort to control or alter the behavior of addicts, their families sometimes press charges and refuse to pay bail, and the addict’s fear of incarceration may be the catalyst needed to get the person into treatment, he explained.

“I’m not advocating a jail cell as a place to detox,” Jordan said. “But it has worked, and there’s no replacement. There’s no long-term treatment for one or two weeks where people can detox and return. I don’t know what that alternative is, and I don’t see funding coming to address that.”
Bartlett said his jail offers programs to addicts who are ready to start their recovery. He’s had former inmates tell him the programs saved their lives.

“People won’t get that if they’re released,” he said.

But Trimble, of the New York Civil Liberties Union, countered that most jails are limited in their substance abuse services.

“We have waited many years for reform in bail,” she said. “To delay would be a tragedy. There are alternatives to incarceration, and all should be explored, at much lower expense to counties.”
Flores called the new law “very complex.”

“As an advocate, you can see both sides,” she said, but added, “The Legislature has passed it, the governor has signed it, and I would support it.”

Jordan and others in law enforcement contend the law should at least be amended.
“The Legislature should talk to judges, district attorneys and defense groups and find the right balance,” he said. “There’s no balance with the law as it is.”

Heggen said the legislators who put together the bail reform law “did not take the time to talk to stakeholders about the significance of the changes.” She has called for a delay in implementing the reform so the issues can be examined in more detail.
Bartlett and Russo also urged a time out.

“The reforms are being pushed through with no thought,” Russo said. “The public doesn’t know how much it’ll affect them. The law should be put on hold. There’s some middle ground to be found, but this is ridiculous.”