Fearmongering A Dubious Bail Law

The great Murray Kempton wrote, “There they go again, framing the guilty.” His point was there could be wrong on both sides, and often is. New York has made a significant change to its bail statute, one that was needed not because the old law was inadequate but because prosecutors and judges failed to do their job with the level of honesty and bravery necessary to make any piece of the legal machinery work as intended.

But given the window of opportunity, when the Dems took over the New York State Senate, and held both houses of the lege, they would make reform happen. In a budget bill, of all places, without public discussion in the dead of night.

Despite the promise of a new era in the state Legislature, certain things didn’t change. Complex public policy, in this case criminal justice reforms, got forced through in a rushed budget process. And all New Yorkers may soon be less safe as a result.

Before, the bail statute required bail to be set, or not set, based upon the likelihood that a defendant would fail to return to court. It was straightforward and left the decision in the hands of the prosecutor to seek bail, the defense lawyer to oppose it and the judge to decide.

Too often, prosecutors sought bail for frivolous or baseless reasons. Too often, defense lawyers, especially public defenders, lacked the time or knowledge to mount a sufficient argument against it. Too often, judges acquiesced in the prosecution’s request, because they went with the odds, and if they took the risk of cutting a defendant free, ROR as it’s called in NY, and the defendant went out and committed some heinous crime, the same folks prone to outrage would call for the judge’s head. The outraged never seem capable of seeing how their hypocrisy plays into the problems they claim to hate.

So a bunch of new legislators came up with a compromise bail law that would make Rube Goldberg blush. Decades of effort to think through crim law reform to make it simultaneously serve its multiple purposes were ignored in favor of the loudest shrieking from the most simplistic saviors.

Bridget Brennan, New York City’s Special Narcotics Prosecutor, was not amused.

The budget bill, negotiated in secret, is no place for significant criminal justice reforms. This year’s changes will undermine our most effective tools for cutting the supply line for lethal drugs and handicap efforts to fight the opioid epidemic. We will all suffer.

Even though she’s a woman, and we’re told that if only women were in charge, everything would be wonderful, Brennan isn’t that kind of woman. Having known her since her ADA days in Manhattan, she never was.

Its crafters failed to consult those who have succeeded in taking heroin and fentanyl off our streets. New York City’s Office of the Special Narcotics Prosecutor has seized three tons of narcotics in the past five years, and not a single legislator called to ask about the impact of such a sweeping change.

Her issue is that people charged with A-1 sale of narcotics, outside the new “Operating as a Major Trafficker” felony, are treated no differently under the new law than a kid smoking weed on the street corner, and not as harshly as a person charged with misdemeanor sexual assault.

While the Legislature may not have intended to make it easier for Mexican cartels to smuggle drugs into and money out of New York State, this will be the result. Judges routinely arraigning defendants on top narcotics charges will not be permitted to assess whether bail is appropriate due to the seriousness of the charges, risk of flight or history of violence.

Oh no, the Mexican cartels!?! Except the real cartel guys are taken to federal court, southern or eastern districts of New York. Two districts, no waiting. And it’s really easy for a little player to be charged with an A-1 felony, requiring only two ounces of drugs for sale and eight ounces for possession. These aren’t drug kingpins, except to the dopes who don’t know any better. But that’s not to say the law was crafted out of fantasy.

That’s not how bail reform was sold. It was about poor defendants with relatively minor offenses languishing in jail due to an inability to post bail — which everyone agreed was unfair.

The activists, including some public defenders who have shamelessly lied to achieve their ends, have pounded away to their woke fans the fantasy that the only people arrested are poor, black youths who, if they did anything wrong at all, were victims of society. It’s not that these people don’t exist and the problem isn’t real, but the lie ignores that there are also bad dudes out there who do bad things and seriously harm other people.

They never mention these people when they tell their sad tales, and the useful idiots who obsess on their cries are too shallow to grasp that it’s only a slice of the story, the slice they want to tell.

But notice how it also says, “which everyone agreed was unfair”? That’s malarkey too, as prosecutors would announce how they would no longer seek needless bail, and then seek needless bail just like they always did. And (almost) everybody ignored the existence of judges rubber stamping bail requests. Aren’t judges part of the “everybody agreed” claim too?

What are the chances that defendants charged with an A-1 drug sale or possession, freed without bail, usually not citizens, often with a dozen priors, are coming back to spend the next 20 years in prison? The day after their release would seem a fine day to take a vacation and buy a nice house on an island in the sun. And someone else will make sure their street corner doesn’t go empty and neglected, even if there’s a fight over who gets to hold it and who ends up dead for trying.

On the other hand, the new law has enough caveats that none of this might happen anyway, because the new bail law is a Byzantine misfit crafted by clueless legislators upon the fantasy cries of activists without the input of those who understand how the system worked and failed. Brennan is fearmongering, but that doesn’t mean this reform, that wouldn’t have been needed at all had prosecutors and judges not “agreed it was unfair,” and had defense lawyers done their jobs a whole lot better, isn’t a mutt as well.

3 thoughts on “Fearmongering A Dubious Bail Law

  1. Pedantic Grammar Police

    Under the circumstances it’s impossible for bail to be managed in a reasonable way, because that would mean that many defendants would be released without bail. This would inevitably lead to the “Persky-ing” of judges and prosecutors, either during an election or after a regrettable incident involving a released defendant. The solution will probably be obvious to prosecutors; they will start charging low-level drug offenders with “Operating as a Major Trafficker”

    This cloud does appear to have a silver lining: “Ironically, the budget bill also contains asset-forfeiture changes that undercut efforts to use narcotics proceeds for the public good.”

    I think this may mean something like “Makes it harder for police to steal money and valuables from the poor and middle-class.”

    1. SHG Post author

      Someone free without bail will do something horrible, and the judge will point to the law and shrug, bringing a wave of reform to end this “let killers out of jail free” law. Or, the law will get gamed so that it works nothing like the way it’s meant. Good laws are hard.

      As for forfeiture, they will just send it off to the feds for adoptive forfeiture rather than use NY forfeiture law, and take their cut.

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