No one has the slightest clue how New York’s bail reform law is working as yet. Neither statistics nor anecdotes* prove anything. It’s far too early to make any determination. If there was a cause and effect connection, it wouldn’t be discernible so quickly. But since we all know correlation does not imply causation, the contention that crime has risen (January over January) since the bail reform law has gone into effect is more likely due to unseasonably warm weather this January than bail reform. And frankly, the new bail law didn’t really change all that much.
While the bail reform law enacted isn’t what I would have done, as one-size-fits-all laws are no more effective for the reformers than their tough-on-crime adversaries, it’s the law, for better or worse. Sure, it was “invented” in the middle of the night by legislators who have little clue how the legal system works and believed in fantasies, but then, it’s also not wildly out of sync with any other approach. Cutting a guy loose ROR who would have gotten $500 bail before just isn’t a big societal deal, except to the guy who can’t afford $500 bail.
Yet, a mere six weeks into the experiment, Governor Andy Cuomo and the Senate Democrats are ready to collapse.
Under public pressure, State Senate Democrats are set to propose an overhaul to the state’s freshly minted and controversial bail law.
The Democrats will recommend abolishing bail altogether while increasing the types of crimes for which a suspect can be held and increasing judges’ authority to do so.
Cuomo says “Me too.”
“Let’s take money out of the cash bail system,” Cuomo said early Wednesday on Long Island News Radio.
“Just eliminate cash bail totally, but have a check in the system where the judge can use discretion where they make sure public safety … is protected.”
“That’s my original plan I put forth last year.”
“I’m saying the discretion should not be based on how much money [defendants] have in their pocket,” he added.
If this makes your head hurt because it offers nothing whatsoever of substance, you’re not alone. If this makes your head hurt because it turns out Andy and the senators aren’t your Democratic allies, that’s a different problem.
Members of the state Assembly vowed Wednesday to oppose a state Senate plan to revise New York’s controversial bail reform law, calling the effort “racist” and “bulls–t.”
“I don’t need any fake-ass legislators who are allowing fear-mongering to try and go after our people,” said Assemblyman Michael Blake (D-Bronx).
Apparently, the Democrats in Albany have now split into two warring groups, the “fake-ass racist and bullshit” Dems and the Assembly Dems.
“Right now we have a racist, institutionalized system that for centuries has done everything possible to go after black and brown communities … We are not going back on bail.”
Assemblyman Walter Mosley (D-Brooklyn) also said that “we’re not about rolling back something that was a blemish on our society.”
“They want to go back and re-transform and do this bulls–t legislation, so sometimes you’ve got to be profane to be profound,” he said.
Strong words, even if the arguments are somewhat emotional. But they have a point. Even if the enacted bail reform law is unduly simplistic and founded on dubious assumptions about the problem, it’s now the law. Give it a chance to play out, after sufficient time to ascertain whether it works or not, and considering the many trade-offs between incarcerating presumptively innocent people before trial with their failure to return to court.**
But what about the people victimized by these freed violent defendants? What about their rights? That’s a wonderful question, and one that’s always in question in the law. You have innocent defendants who have been wrongfully arrested. You have innocent victims of crime. You will not be able to create a perfect system to eliminate both problems, and that was always the case. So a choice has to be made to err on one side or the other, and our system has chosen to err on the side of the accused. See Blackstone’s Ratio.
But on a more human level, the attribution of harm to released defendants largely misses the point. The people released now would have been released anyway if they had the funds to be bailed out, so the only thing preventing them from being free to fight their charges was their lack of money. For those who were bad dudes who had money, they were out anyway.
That a mere six weeks into the experiment, reform that had been pursued for decades even if in other forms than the one enacted, the governor and Senate are willing to admit failure and agree to start tweaking it in worse ways that before, means no reform will be given a chance.
Within weeks, [Senate Majority Leader] Stewart-Cousins began a series of meetings with prosecutors and police to discuss alterations. Under her new plan:
- All misdemeanors — with the exception of certain hate crimes and sex crimes — would no longer be subject to bail requirements.
- With all other crimes, a judge would have authority to either remand the suspect to jail or impose electronic monitoring or order some other type of monitoring. Flight risk and a person’s criminal record (“persistent offenders”) could be factors.
- Felony domestic violence charges which aren’t treated as “bail eligbile” now would become “remand eligible” or “monitoring eligible.
- Any crime involving a fatality would be eligible for remand, regardless of whether it involved a crime such as murder, or all levels of manslaughter.
- The state would begin collecting data to see how the bail law is working — including information about recidivism, the percentage of suspects being held/released and racial demographics.
Stewart-Cousins also said they are considering extending deadlines for prosecutors to turn over discovery evidence.
Stewart-Cousins says this plan is still progressive,*** as if the incantation of the word is good enough. What nobody knows is whether the law as enacted is effective and sound, and if not, what modifications need to be made to make it so, but it seems as if nobody really cares about that troubling detail. And they lack the fortitude to say the obvious: give it a chance to work and then determine whether it needs to be tweaked.
*To be fair, advocates for reform use the fallacy of anecdotes to make their case, just as their opponents now use the fallacy of anecdotes to prove it’s failing. Neither is without fault for using fallacious arguments to manipulate ignorant opinion.
**The perennial reminder, the only purpose for bail under New York law was to assure a defendant would return to court. Public safety was never a permissible factor for bail.
***As proof of its progressiveness, “domestic violence” and “hate crimes” are carved out of the presumption of innocence because they’re “bad” crimes committed by “bad” people, none of whom are worthy of the presumption.