Over-reform? Blame The Judges

The editorial board of the New York Post occasionally has a point.

One of the top goals of today’s criminal-justice-reform movement is to undo excesses of the past — heavy-handed laws that required long prison stretches for relatively minor offenses, by robbing judges of the discretion they traditionally had when it came to sentencing. But some reformers are now making exactly the same mistake.

Mind you, the Post wasn’t exactly reluctant to enthusiastically endorse the “heavy-handed laws.” There have been far too many tough-on-crime initiatives piled atop and beside each other over the past 40 years, from the inane “Three Strikes” laws to mandatory minimums, from the excessive sentences for drugs crafted in hysterical reaction to the overdose of Len Bias to the excessive sentences for corporate crime in the aftermath of Enron.

The theory that harsher, and then harsher some more, would eventually solve everything was an easy sell, and nearly impossible to let go. And people loved it. They elected politicians for it, and they never once concerned themselves with the disparate impact on minorities because that was exactly who they wanted locked up. This wasn’t white supremacy, as the false narrative of the woke pretend today, but everybody. Black politicians demanded it, supported it. The Black Congressional Caucus was as much behind it as Joe Biden and Bill Clinton.

The pendulum is now swinging, as pendulums do.

Today’s error is in the opposite direction: They’re removing judicial discretion on questions such as which accused perps should be remanded until trial or forced to post bail.

Bail reform has become a particular cause célèbre, and with good reason. The fix, however, is to tie judges’ hands, and the politicians today, like their predecessors, can’t restrain their impulses to push the popular cause as far as possible.

Now pols like Mayor de Blasio, Gov. Cuomo and the Democratic-controlled Legislature are racing in the other direction — not just by forcing judges to release defendants without bail but also decriminalizing offenses, hamstringing cops and ending prosecution for certain crimes.

Reform while the getting is good, even if the reform is as much a flawed one-size-fits-all solution that will likely backfire and cause the pendulum to swing again, the other way this time.

Team de Blasio expects the move to triple the number of teens freed with no bail, including those accused of serious crimes like armed robbery, assault and burglary. The rules also set a higher bar for requiring adults to make bail or be kept behind bars.

The mayor claims the policy’s meant to help end “mass incarceration” and reform accused criminals, insisting it won’t affect public safety because . . . well, trust him.

Of course, public safety was never a criterion in New York for release, but law is hard. The problem is us, that when someone freed ROR for a pretty nasty charge goes out and does something even worse, at which point the judge’s face will appear on the front page of a newspaper, the Post if it’s a murder and the Times if it’s a rape, we call the court complicit in the crime by letting some miscreant loose upon the public.

Would the better solution have been to allow judges the discretion to determine who needs to be detained and who can safely be released? That’s where the Post loses its mojo, just as the Times blew it when activists demanded reform.

Let’s get real here: nobody is running off to Tahiti to avoid a public urination prosecution.  Sure, they might forget to show, or try to stay under the radar, but either the cops will get them when they jump the turnstile or, if they manage to live out the rest of their natural lives without ever getting pinched, the public has been served.

But most will return, even if we lose a few.  Except you won’t know that because they’re all sitting in Rikers on bail of $1000 or less for crap cases, trivial charges and the crime of living miserable poor lives.

There is no question but that thousands of people cop pleas to crimes that never happened or that they didn’t commit just to get off the Rock. There is no better incentive to admit false guilt than to go home, and there is no greater impediment to fighting for one’s innocence than being locked up. But when baby prosecutors (who are the kids doing arraignments and making the bail application decisions) request silly amounts of money for trivial offenses, knowing full well that making $500 bail is impossible for someone without a pot to piss in, the outcome of that bail app controls the future course of the case.

But so too does the judge. The ADA doesn’t get to have his way just because the words, “The People request $500 bail” emit from his yap. These words are said to a judge, and then the judge is supposed to exercise his big boy discretion and make a judicious decision. Or cover his judicial butt by rubber stamping the kids’ bail requests.

Want to fix the problem? Stop setting bail for people who don’t pose a factually justified risk of flight. Stop setting bail for people who are charged with a petty offense. Stop setting bail for anyone at $1000 or less. And that can be fixed starting today, and will be fully fixed by this time next month.

But for all the New York Times editorials and politicians’ proposals, you won’t do it. Nobody wants to see their face on the front page of the Post as the City’s worst judge for letting the wrong person walk out of AR-1.

The New York Post is right to challenge the flip-side of Three Strikes and Mandatory Minimums as bad and unworkable fixes that eliminated responsibility from those who get paid the big bucks to do their judicial jobs. But the complaint that the new reforms tie their hands and deprive judges of needed discretion is malarkey. They had the discretion, and it was just as much a failure as the lack of discretion. If good judges exercising sound discretion were the solution, we wouldn’t have needed reform at all. They always had the power to fix the problem. They just chose not to.

5 thoughts on “Over-reform? Blame The Judges

  1. B. McLeod

    Of course this is going to screw with that systemic “discretion,” where the police and DA believe someone is a bad actor for a host of reasons they can’t prove, and so want to impose the maximum harsh experience for whatever petty offense they actually can prove.

    1. SHG Post author

      There’s a fair question of whether it’s better to err on the side of release or detention, and I (unsurprisingly) come out on the side of release. But then, it’s also a fair question of whether it’s better to err as little as possible or to employ inflexible rules that fail to take into account individualized circumstances. I (also unsurprisingly) prefer as little error as possible.

  2. Pedantic Grammar Police

    Can you really blame the judges? How much discretion did they have?

    Even before Persky it was well-known that the public liked harsh sentences and disliked leniency. Judges who were too lenient wouldn’t be judges anymore. As long as judges are subject to the whims of the voters (or any other mechanism for punishing leniency) it seems unavoidable that they will have to interpret the law harshly if they want to keep their robes. One-size-fits-all is not ideal, but maybe it’s the best we can get under the circumstances.

    1. SHG Post author

      It has the benefit of taking the onus off the judge to do his job. If that’s the challenge, consider it accepted.

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