Stupid Reform? Blame The Judges

In her NY Post op-ed, Karol Markowicz isn’t right, at least not on the law. In New York, the only basis upon which bail could be lawfully imposed is to assure a defendant return to court, so her complaint that the new reforms will let dangerous criminals back onto the streets reflects a lack of understanding of the law as it exists.

On the other hand, few of us in the trenches believed that danger to the community didn’t factor into the judges’ bail decisions, even though the law was that it shouldn’t. There were ways to sneak it in, such as concluding that a person charged with an offense that carried a severe penalty was more inclined to abscond than someone who was charged with an offense carrying an insignificant punishment. No one flees to Madagascar to avoid probation.

The problem was that judges were imposing bail promiscuously. Some kid ADA asked for it, based on nothing special, and got it, or something like it, if the defense attorney argued well and the judge was in a good mood. As has been documented in a million tales of woe, some poor person, usually black or Hispanic, got pinched for some petty offense, an unofficial element of which was often pissing off a cop, and would be held on a thousand dollars bail.

That’s $999 more than he had. So off to the Rock he went, where it not only cost a lot more money to hold and feed him, provided he survived the ordeal, but where he lost his job, his apartment and left his kids hungry, lonely and confused. There was no good reason for this to happen. It saved no one. It helped no one.

And it did, indeed, criminalize poverty. He was in because he couldn’t afford bail that shouldn’t have been imposed in the first place. He was serving a sentence before being convicted of a crime. He posed no threat to anyone, or at least no greater threat than anyone else in New York.

Even before they’re fully implemented, their plans have been disastrous. Every week brings a new story of a prisoner bailed out by leftist groups who went on to commit another crime.

The Post noted one case just a week ago: “The Bronx Freedom Fund posted $2,000 bail for Luis Olivo, accused of abusing a 3-year-old boy.” Olivo was subsequently “arrested again — for allegedly groping an 8-year-old girl.” What will happen when there is no bail at all for suspects like Olivo?

No one of even the most modest intelligence suspected this would go without a hitch. There would be people released who would reoffend, do horrible things, because some people are bad dudes. But rather than call the Bronx Freedom Fund “lefty” as if to taint it, consider why it came into existence in the first place. Prosecutors seeking bail without cause, and judges too afraid of seeing their face on the front page of the New York Post under the caption, “New York’s Worst Judge,” caused them to play it safe rather than sorry, to impose bail routinely rather than do that hard work of thinking, “does this person really need bail? Really?”

And it’s worth noting that Bronx Freedom Fund’s batting average is spectacular, even if one released defendant didn’t turn out well. Even your most reliable slugger is going to strike out once in a while. But judges are even better fodder for castigation than “lefty” groups.

And here it’s happening again, although it’s the Bronx Freedom Fund being shredded rather than the judge who cut Olivo loose and will be made to pay dearly for not being able to read minds. If Karol believes that reform was needed, then she can’t condemn the occasional bad outcome everyone knew would happen.

No wonder a Manhattan judge last week called the law flat-out “stupid,” as he lamented having to set free — with no bail — burglary and robbery suspects.

That judge is Maxwell Wiley, whom I’ve known since he was a Manhattan ADA, and before whom I’ve tried a few cases. He’s a decent person and a good judge, even though he’s been attacked from the left for calling the no-bail reform “stupid” and “against all common sense.” And if those offended by his characterization read beyond the headline, they would see it.

“The law is stupid, but I have to follow it”: said Manhattan Supreme Court Justice Maxwell Wiley moments before releasing without bail suspects charged with burglary and robbery.

Justice Wiley complied with the law, even though he thought it a mistake. That’s what a good judge does.

In the case of another man, Jose Gonzalez, 35, who faced charges related to robbery and a maximum of four years in prison if convicted, the judge rolled his eyes before ordering the man’s release.

“The law is stupid, but I have to follow it,” Wiley lamented.

The law, before reform, wasn’t stupid. It left to a judge at arraignment, and to each judge subsequent to arraignment, the opportunity to determine whether a defendant should be released on his own recognizance or bail based on the factors set forth in the statute, CPL § 510.30. The law was more than adequate to do the job. The problem was that the judges weren’t tough enough to do the job, whether to say “no” to prosecutors or suffer being called mean names by the New York tabloid media when a call went south.

The response was the new bail reform law, a hastily cobbled together reaction based on fantasy assumptions and the simplistic mantra that bail criminalizes poverty. Sometimes it does. Sometimes it doesn’t. But we’ve gone from one-size-fits-all carceral solutions, like three strikes and mandatory minimums, to one-size-fits-all anti-carceral solutions, like eliminating bail without regard to any factor militating against releasing a dangerous guy whom you know you’ll never see until he’s arrested for his next heinous crime.

You see, Karol Markowicz isn’t right, but neither is Karol Markowicz wrong. Had judges done their job, took the risk and released defendants for whom there was no justification to impose bail they couldn’t possibly make and was wholly unnecessary, we wouldn’t be facing a law that Justice Wiley calls “stupid.” And it is stupid, as it fails to provide individualized consideration as if defendants were fungible, all just poor victims of the power structures that forced them to whack some old lady over the head to steal her purse to buy a fix.

Yet, it’s the law and no matter how long and hard one has argued for judges to do their job, make the hard calls, the simpletons will fail to see that they squandered this opportunity to achieve effective reform by pushing their own untenable excesses. We didn’t have to end up with a stupid law, but we did. The fix to “too few” isn’t “too many,” but the right number. But don’t blame the simpletons for being simple. Blame the judges who had a good law but lacked the guts to use it.

14 thoughts on “Stupid Reform? Blame The Judges

  1. Chris Hundt

    You’re right of course that the root cause is judges who, out of cowardice or whatever other reason, refused to follow the law. But I’m having trouble spotting the opportunity that the “simpletons” squandered. How could judges be forced to care about this issue except by pressure from voters? Perhaps if the argument had been made we could convince voters to show up at the polls en masse to vote out the judges (and replace them with who?) and your point is well taken that since the argument wasn’t made we will never know. But it hardly seems unreasonable to guess that a campaign for legislation was more likely to be successful.

    1. SHG Post author

      There are a few things for you to consider. The first is that once a reform is introduced, it becomes entrenched, such that people will argue and fight for it regardless of its efficacy, and it will preclude further, deeper thought about solutions that would be more effective and less problematic. So the introduction of bad reforms is a problem in itself, as it precludes better ideas.

      Second, there’s a reason intransigent problems are intransigent: they’re hard to solve. They may even be impossible to solve. But to the simplistic, the syllogism kicks in:

      Something must be done.
      This is something.
      This must be done.

      The simplistic then argue that it’s better to do something when facing a problem than do nothing. Except that’s not necessarily correct. The alternative to be isn’t necessarily good, as it can always get worse. Poorly conceived change may be change, but that doesn’t make it good or effective change.

      Third, if you think harder, you might realize that the problem wasn’t the law, and the solution wasn’t replacing “bad” judges with other judges, who may be no better or may in fact be worse. So what’s the solution? That’s what remains to be determined, except it won’t be because we already put a “fix” in place that fails to solve the problems and will be defended by its advocates until the pendulum swings again and new Draconian fixes replace it.

      Fixing intransigent problems is hard. Remember what Mencken said.

      1. Chris Hundt

        Thank you for your thoughtful response. I am also concerned about the pendulum swinging too far in the opposite direction once some unpleasant consequences of this change become apparent. I am less concerned that this new state of affairs will be worse than the old one, because to me the harm of imprisoning so many people as soon as they are accused is so great that I have trouble imagining how the negative consequences of the “reform” law could be worse. But perhaps I am naive or lack imagination.

        I see your point about a bad “fix” hindering the implementation, or even conception, of a better one. But as you concede, there might not be one! Maybe this is as good as we can do right now. At the very least, I would not call people who think so fools.

        1. SHG Post author

          There might not be one, but there might. Fools rush into simplistic solutions without putting in the time and effort, and hard-learned realism, necessary to find out. Some aim without shooting. Others shoot without aiming. Better to aim first, then shoot.

  2. rxc

    “We must ensure that this tragedy never happens again!”

    Slight variation on your syllogism, but still very effective against politicians. especially if involves harm to children, women, the elderly, and other vulnerable groups.

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