While I’m generally against judges writing decisions that contain song lyrics or other cutesy gimmicks as being insufficiently serious about the very serious effect they have on people’s lives, I can’t help but feel Bronx Justice Jeffrey Zimmerman’s pain. I’ve felt it as well, and while I’ve tried to make the best of it from when bail reform was enacted in the dark of an Albany night by people who lacked the knowledge, experience and humility to get it right before making it law, it was never the solution to a very real problem.

Justice Zimmerman had enough.

“Maybe you’ll find direction
Around some corner where it’s been waiting to meet you”
–Phil Lesh and Robert Hunter, “Box of Rain”

Clearly, the bass player and lyricist of the Grateful Dead have never read New York’s bail reform statutes. Instead of direction, the statutes provide judges with obfuscation and legislative sleight of hand. Faced with a constituency that — justifiably, but incorrectly — assumes that the purpose of bail in New York is to protect the community, but unwilling to join the 49 others states and the federal government in explicitly making that so, our legislature has instead, with each successive amendment to the bail reform statutes, allowed judges to consider more factors that actually go to a defendant’s “dangerousness,” while still maintaining that the only purpose of bail is ensuring a defendant’s return to court.

Unlike other states, New York’s bail law had only one lawful purpose, to insure a defendant’s return to court. Community safety could be factored in around the edges by prosecutors arguing that the more serious a charge, the more likely a defendant would flee rather than face prison, but the law did not expressly allow a defendant to be remanded or given excessive bail because he was dangerous.

While this was unique to New York, it was the correct jurisprudential position if we are to honor the presumption of innocence. After all, if the defendant is presumed innocent, he cannot also be deemed a danger based on conduct for which he has yet to be convicted. It was contrary to what most people feel, both because they don’t really believe in the presumption of innocence and because fear of other people is a far stronger motivator than respect for other people’s rights.

The legislature’s cynical attempt to mollify the public’s concerns about safety, without expressly giving judges the tools to address them, has created a confusing mess. This opinion attempts to decode what the legislature has done by (a) figuring out what the statutory language does and does not accomplish; (b) unraveling, and attempting to harmonize where possible, drafting that appears inconsistent on its face; and (c) applying that learning to the case of Edward Santiago.

Justice Zimmerman goes on to give a “very truncated history of bail reform,” and it’s neither pretty nor complete.

Of course, all of these nearly annual changes to the bail statute were done after extensive legislative hearings in Albany, where noted experts in criminal law were invited to share their penological insights about the purpose of bail and their complex mathematical models about the effects of bail reform; stakeholders from all corners of the criminal justice system provided detailed accounts of how bail reform might affect fairness and crime rates; and legislators asked thoughtful and probing questions before they deliberated with their staffs and colleagues.

JUST KIDDING!! None of that happened. Instead, each of these significant changes to laws that have potentially great effect on the liberty of defendants and the safety of the community were passed as part of the state’s budget, a uniquely opaque Albany process that involves glomming obviously non-budgetary items — such as bail reform — onto the passage of legislation required for the state to keep operating. (See Emmanuel Arnaud & Beulah Sims-Agbakiaka, New York Bail Reform: A Quick Guide to Common Questions and Concerns, 106 Cornell L Rev Online 1, 2 [2020]). The result is that bail reform was passed — and then amended — with little thought and even less open debate. (Id. at 2, n. 4). The courts are left to interpret an evolving area of the law that was dictated largely by political expediency rather than policy enlightenment, and burdened with much ambiguity and internal inconsistency.

Both the initial reform and its daily amendments to include the latest flavor of dangerous crime were reactions to the cries of of the unduly passionate, first from one side and then from the other. What they were not, and what’s omitted from Justice Zimmerman’s history lesson, were thoughtful and sustainable reforms to compensate for the reality the New York judges had long been a bunch of mealy-mouthed cowards who set bail based on nothing more than some pimple-faced prosecutor’s say-so for fear that if the defendant went out and did the dirty, they would end up with their puss on the front page of the New York Post as “New York’s Worst Judge!”

The problem of bail reform has been going on as long as I’ve been a lawyer, and no doubt before that when I wasn’t paying attention. But more importantly, in February 2019, a commission chaired by former Court of Appeals Judge Carmen Beauchamp Ciparick and Supreme Court Justice Mark Dwyer (yes, that Mark Dwyer) that put very serious thought into how to reform bail and do so in a way that was sustainable for everyone, including a rebuttable presumption of release.

But the activists in the legislature and their friends on the street didn’t bother to read  or consider it. Neither did Justice Zimmerman. We could have done something serious to deal with a very real problem. What a long strange trip it’s been.