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.