New York Bail Reform, Day 3

It seemed most likely to be a horrific murder or rape to be the impetus to demand reversal of New York’s new bail reform laws, which went into effect January 1. Not that anyone with any real grasp of criminal law didn’t know it was going to happen. Of course it was. Something would happen. Something always happens.

Some guy cut loose for a crime on the list of crimes for which bail couldn’t be imposed would go out and commit a horrific crime and all hell would break loose. The backlash would be as insipid as the frontlash, as advocates for change used sad anecdotes to support their cause, and so too would advocates against it do the same, but with a story of how horribly wrong it was to free the guy who did this horrible thing.

The new bail reform law was crafted to produce this result. Instead of reaching individual determinations on a better basis than the failed way in which it had gone on forever, and which could have been ended in a snap had judges chosen to do their job rather than rubber stamp baby prosecutors’ often needless requests for bail, it created yet another one-size-fits-all solution: precluding the use of bail for most crime.

The defendant had 42 low level crimes, a long history of mental illness, a few crimes involving actual  violence mixed in, and 17 bench warrants? No matter. If the crime for which he was arrested wasn’t on the bail-eligible list, he walked. In the scheme of what matters, it was something along the lines of Blackstone’s Ratio, better to cut loose nine defendants who won’t return, or are likely to commit another crime while free even though that was never a bail criterion, than hold one person on the Rock for no reason. So be it. That was the policy choice made, and even if it might not be the best choice, it was better than what was happening before.

And it almost lasted for 72 hours, although it didn’t turn out to be a tragic murder or rape that shifted the winds of change.

“They are afraid to walk the streets,” said Assemblyman Simcha Eichenstein of Brooklyn. “So what I am doing with this proposed piece of legislation is, I am focusing on the hate crimes piece only. I think we need to understand that people who are filled with hate should be in a separate category.”

Eichenstein has proposed legislation that would reinstitute cash bail for hate crimes, many of which are included on a list of crimes no longer eligible for bail under the new law.

The irony here is that the focus is on “hate crimes,” which reflect the intersection of criminal conduct, such as assault, with the entirely constitutional right of hating people. It’s not that anyone is suggesting hate is a good thing, but that it’s not only not a crime to hate, but it’s a right. The offense is the conduct, the assault, and the “hate” becomes an enhancement reflecting a motivation that, the argument goes, makes the conduct particularly reprehensible and culpable. Others might argue that being beaten because it’s Tuesday does just as much harm as being beaten for being an orthodox Jew, making the motive irrelevant and not turning the right to hate into an element of a crime.

Eichenstein is not alone. State Senator Jim Gaughran also has a bill that would go even further, reinstating 52 crimes that were made ineligible for bail. He’s also looking to add a dangerousness factor for judges to consider when deciding whether to set bail.

“Unfortunately, the way the bill was ultimately adopted in the budget is that it includes some crimes that I believe really should be crimes that a judge should have the discretion to set bail if he or she determines it is necessary,” Gaughran said.

It surprises many to learn that under New York law, risk of danger to the community was never a permissible factor in setting bail. The only reason for bail was to assure a return to court. The seriousness of the current charge could become part of the calculus, since the more serious the charge, the more serious the sentence, and consequently the greater the motivation to flee.

Most people who fail to return don’t abscond. It’s really not worth it to flee to Aruba to avoid that public urination charge, and if they can’t afford bail, they’re going to have some difficulty with the airplane ticket too. Most of it is irresponsibility, although it’s politically incorrect to say so as that would impute a negative characteristic to people. But it matters because it would inform legislators and judges how to fix much of the problem of bail and failure to appear for petty offenses.

Instead, we’re a mere 72 hours after the effective date of bail reform legislation with legislators calling not only for change, but calling for a paradigm shift in the bail factors to make bail (which means detention for people who can’t afford to pay $500 bail) more likely.

“It kind of betrays a disrespect for the legislative process,” [Sergio De La Pava, a New York County Defender] said. “These reforms were decades in the making. The truth is, New York was operating under a severely unjust pretrial detention system. One of the bedrock principles of this country is the presumption of innocence.”

Not to nitpick, but the reform enacted wasn’t so much the product of decades of effort, which did, in fact, happen, but a midnight compromise by a handful of newly elected progressive Democrats with no knowledge or experience with the criminal law system. We never had a “severely unjust pretrial detention system,” and in fact had a pretty great system that functioned really badly.

But De La Pava’s right, that the foremost guiding principle in fixing bail should be the presumption of innocence, which strongly militates for release. And Eichenstein and Gaughran were on board with it for at least 72 hours. While their proposed laws won’t pass, there will be others as new bad things happen, as we know they will, until everyone’s ox is gored and the winds of change blow ever harder the other way.

14 thoughts on “New York Bail Reform, Day 3

    1. SHG Post author

      Use the url (delete the space between the h and ttps), not the embed link.
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  1. M Tadros

    At the risk of revealing the monumental level of my own ignorance, I must ask: shouldn’t bail (theoretically) result in the defendant in walking out of the cell?

    If the court holds the defendant on one-trillion-bazillion dollars bail, and the defendant phones a friend who shows up with one-trillion-bazillion dollars, the defendant walks out of the jail, isn’t that correct?

    And I realize the issue here was originally prompted with bail being set so high that there was no way defendants could raise the amount necessary, but it still strikes me odd that, for all the purposes of this whole NY bail discussion, it is simply assumed that: bail = stuck-in-jail.

    As you say, the only purpose of bail (I think) is to ensure that the defendant will return for trial. If the goal were to ensure that the defendant couldn’t leave, then why even tempt fate by having the court quote a price that, if met, could mean the defendant’s release?

    I thought this when you posted the story of the group who posted bail for a guy who subsequently went to do something awful; I couldn’t help but think that the purpose of there being bail in the first place was so that the guy could leave, correct? Low or high, so long as the dollar number is met, the guy walks out — that’s the purpose of the number being an actual number, isn’t it?

    Why should horror stories of released defendants have any effect on the discussion?

    Couldn’t the horror stories told by the pro-bail crowd have still occurred with bail? Don’t/didn’t they already? Why then, now that bail is gone, do people argue for its reinstatement under the argument that “such-and-such defendants is too dangerous to be released”? Why try to combat laws against bail with laws for bail, if both, theoretically allow the defendant to leave? Why not just promote a law that says, “Defendants who commit these here crimes, that we don’t particularly like, don’t get to leave until either trial, adjudication by the court, or dismissal of charges”? And if there is a constitutional/legal issue with that, then how/why are the pro-bail crowd openly promoting bail as if it will it accomplish that unconstitutional/legally-unsound goal?

    1. SHG Post author

      Protip: if everybody is arguing about something that makes absolutely no sense to you given your limited understanding of the basic premises, the problem is likely that your understanding of the basic premises is seriously wrong. Perhaps there’s a reddit thread about Bail 101 that could explain this to you.

      1. M Tadros

        Bail 101 on reddit? That bad, huh? My apologies for taking up your time. I will wait until I am more educated on this subject to discuss it.

        1. SHG Post author

          It’s Sunday, it’s quiet around here, and I have a few minutes, so I’ll try to do a quick course. The bail reform was primarily to address low level bail problems, people charged with petty crimes who got $1000 bail and couldn’t make it, so they sat in jail. These were always bullshit cases and bullshit bail, and they should have been released, but they weren’t. The high end bails are a different animal, for serious crimes. Reform became an issue in the middle, where the crimes had serious names but could be more or less serious, depending on the details. They put them into the “no bail” category, which includes the more factually more serious ones with the less serious.

          The point of bail is to create a financial incentive to return to court, as the forfeiture of bail would be sufficiently painful that the deft would want to get his money back. Finding that “sweet spot” was key, but rarely happened. Prosecutors demanded too much. Judges gave them too much. So it effectively meant remand, even though the bail might only be $1000. Remember, $1000 is the same as a million if you don’t have it. So people sat in jail for no good reason on low bail they still couldn’t make.

          The million dollar bail case was effectively remand for all but the well-to-do, and everybody knows it. That’s what was intended, even if it shouldn’t be. From the judge’s side, he’s covering his butt, because if he lets him go on low or no bail, and the guy murders a kindergarten class, the judge gets his puss on the front page of the NY Post, and he doesn’t want that as it’s the end of his career. So he sets high bail, the guy sits, and he’s covered from any blame by taking no risk of the deft walking out and committing a heinous crime.

          People think this is all magic and if the wrong guy is cut loose, the judge is to blame. So the system covers its butt at the expense of the deft, but it does so a thousand times a day with petty defts charged with petty offenses and sets petty bails, but still more than the deft can make. Hope this helps.

  2. M Tadros

    I pained about my response. It was so tempting, oh so tempting and so easy, to simply reply: “Thank you, it did help.” But I also kept telling myself: “If you’re ever going to be a lawyer, you have stop being a pussy; you have to tell the truth and not just meekly acquiesce to those above you.”

    So I think I will say: Thank you so much for that response. I, however, think I was unclear in the way I presented my issues, because I already knew and understood much of what you presented. I must research the topic further to make certain that I can ask my questions with more clarity, and to refrain from wasting anymore of your time. Thank you again nonetheless.

    1. M Tadros

      What happened to the feature where you could cancel your comment within a set time limit? You know, in case you didn’t hit the reply button or something like that?

      1. SHG Post author

        It’s still there, so no clue why it wasn’t available to you. In any event, thank you for remembering. As to your response, had you not buried your point in so much wild rhetoric, it might have been an interesting and useful comment (I think your point is that calling to reinstate bail for these hate crimes is tantamount to saying that they want people charged with hate crimes to be remanded, since whether they’re ROR or free on bail, they’re still out, so it makes no functional difference), but I couldn’t get past the misdirected verbiage. Maybe you should try again, this time limit your writing to your point without all the crazy baggage.

        1. M Tadros

          Setting excessive bail is illegal. Bail is supposed to provide an incentive for defendants to return. But judges and prosecutors apparently set excessive bail in order to keep defendants in jail, under (I assume) the guise of preventing a flight risk. Now bail is gone, and people ask for the return of bail, but, they are no longer even pretending that it is to prevent defendants from skipping town; they are openly promoting bail as a system that would keep defendants locked up indefinitely, which seems to suggest not only that the bail amount would be excessive, but that it should be; which is illegal.

          If bail works as intended, it would not be excessive, and the defendant could reasonably pay it and leave jail. From my understanding, bail MUST be payable by the defendant. Therefore, bail can be used as a method for providing a incentive that defendants return to court, but not as a method to keep defendants in jail. Because that would be illegal.

          But that is what the pro-bail crowd is arguing for. They are arguing for something that is illegal. And they are not even trying to hide it. The part I am uncertain about is the illegality of it. Would people openly promote such a view if it was so blatantly illegal? This is where I think I must be missing something. I just tried to do some cursory research (not on reddit) and realized the topic is currently out of my scope.

          1. SHG Post author

            You did it again.

            From my understanding, bail MUST be payable by the defendant.

            Not necessarily. Ability to pay is a factor, but only one factor. This might surprise you, but people with a lot of money stuffed in the mattress often have the appearance of not being able to pay bail, even though they can put gas in their Mercedes. It can happen. Judges are wary of claims about what people can pay, so they don’t always carry as much weight as they should.

            There’s a huge gap between the existential notion of excessive bail and the practical notion in the courtroom. Is $5000 bail excessive for a robbery case for a predicate felon with a bench warrant in his priors? No judge in the world would grant a habe on that, but if the guy only has $100, he gets a vacation on the Rock. Does he only have $100? The judge can’t be sure. What if he’s undocumented? Flight risk? You bet. Weed sale, and undocumented? Still a flight risk. Excessive bail is a far more amorphous concept in general than it might appear to be.

            That said, the hate crimes involved in the post? Yeah, just an excuse for remand because they hate the crime. But if they set bail at $1000 and they couldn’t make it, would it be excessive? Try to find a judge who would grant the writ. Welcome to law.

  3. B. McLeod

    Given that dangerousness has not been and is not a factor in bail decisions there, it seems to me if your legislators throw a set of crimes back into cash bail after only days, with no valid stats showing those offenses are linked to higher rates of non-appearance, they are stepping right into a rational basis challenge that could take down their amendment.

    1. SHG Post author

      Bail reform was sold by anecdotes of sympathetic defts. These defts aren’t sympathetic. This was the problem with reform, that it was premised on a false argument, that all defts were sympathetic, and the problem with reforming reform, that it’s just the flip side of the same false argument.

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