As the epicenter of America’s coronavirus outbreak, Gotham has a lot on its plate. High among the city’s urgent headaches is the need to fix the Empire State’s misguided bail “reform,” passed last year. Sadly, the reform of the “reform” floating around in Albany is no good.
Many state leaders, including Gov. Andrew Cuomo and Senate Majority Leader Andrea Stewart-Cousins, have recognized the need to rejigger the state’s bail laws, with an eye toward addressing the mounting public-safety concerns raised by last year’s “reform.” But details of what might be included in such a proposal have been hard to come by — until now.
On Tuesday, City & State published specific legislative language. If the final legislation looks anything like that language — brace yourself.
The new proposal would go beyond last year’s reform by completely taking bail off the table save for a limited number of crimes, as The Post has reported. And while the draft does allow judges to consider dangerousness, that allowance is drawn far too narrowly to meaningfully address the problems posed by the “reform” law.
To restore a measure of judicial discretion, the new proposal allows for considerations of a defendant’s dangerousness when deciding whether to impose non-monetary release conditions, such as court-mandated check-ins, travel restrictions and electronic monitoring.
Unfortunately, judges can only consider the danger of the defendant committing a new “crime involving serious physical injury to another person.”
But why limit conditions to cases where there is a risk of serious physical injury? Why exclude cases in which the risk is of a serious crime that doesn’t necessarily involve serious physical injury? Examples of such crimes include burglary and illegal arms dealing. And what about the serial bank robber whose M.O. is to pass a threatening note to a teller? Would he still be released under this new structure? It would seem so.
Plus, judges can only assess the need for non-monetary conditions based on the facts of the immediate case — and not criminal history. But there is no logical reason to limit such an important determination to such a small snapshot of information. Indeed, scholarly research indicates that the instant charges faced by a defendant are a poor indicator of that defendant’s risk. (This is something I pointed out in a recent Manhattan Institute policy brief, which laid out a framework for fixing the mistakes in the Empire State’s bail “reform.”)
Release decisions should be informed by a validated risk-assessment tool whose findings are based on far more than the facts of the instant case. The city already uses these to assess flight risk. As a study conducted by the New York City Criminal Justice Agency found, “the likelihood of [a failure to appear] and/or re-arrest for a violent offense was lower among defendants initially arrested for felony-level violent and property offenses” than it was “among defendants initially arrested for all types of misdemeanor or lesser offenses.”
In other words, a judge basing her decision about nonmonetary release conditions only on the facts of the instant case is very likely to be misled and release precisely those defendants who are more likely to re-offend.
Thankfully, judges can look beyond the facts of the instant case in deciding whether to remand a defendant to pretrial detention. But the new proposal continues to restrict judges’ discretion to a specific danger of serious physical injury; it also limits the scope of defendants eligible for remand to those facing certain charges. Here, again, we run into the same problem posed by the fact that the current charges faced by a given defendant are a poor indicator of the risks that defendant poses to the public.
Another provision in the new proposal empowers a commission to investigate, admonish, censure and even remove from office any judge deemed “racial[ly] biased,” which the legislation doesn’t seem to set a standard for. Whatever the intentions behind this new provision, one can see how advocates might leverage this to intimidate judges whose good-faith decisions with respect to pretrial releases produce racially disparate results.
Given the pressing need to close the public-safety gap created by last year’s misguided bail “reform,” it’s tempting to push for a fix to be included in this year’s budget bill. However, the stakes involved require us to place wisdom over expedience. With people spending most of their time at home — and with crime down as a result — getting this right seems well worth the wait.
This piece first appeared at the New York Post
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Rafael A. Mangual is a fellow and deputy director for legal policy at the Manhattan Institute and a contributing editor of City Journal. He is the author of the recent Manhattan Institute issue brief, Reforming New York’s Bail Reform: A Public Safety-Minded Proposal. Follow him on Twitter here.
This piece originally appeared in New York Post