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The new bail reform package proposed by New York’s governor and recently passed by our state legislature is a threat to public safety and will make all of us less safe.
Those who proposed these measures argued that New York’s bail statute was old, antiquated and worked to keep people in jail pending trial unnecessarily. In support of this decision, its proponents cited cases where criminal defendants languished in jail without trial from New York City in Riker’s Island. Nothing can be further from the truth in Sullivan County. No one languishes unnecessarily in jail without a trial unnecessarily here. In fact, our bail statute gave judges—elected by our community and its citizens—not D.A.s, the authority and wide discretion to set appropriate bail conditions on all crimes and to detain those who need to be detained pending trial, all of which has worked to protect our community. Now, under the guise of “reform” our judges will be all but powerless to set appropriate bail for scores of serious crimes where incarceration may be appropriate, including: the violent felony of burglary of a home; aggravated vehicular homicide; vehicular manslaughter; high-speed police chases that place officers and citizens in imminent risk of death; trafficking and distribution of heroin; conspiracy to distribute cocaine, heroin and narcotics; various forms of sex trafficking; sex offenders who fail to register; cruelty to animals, including felony torturing of animals; unlawful surveillance, such as installing a spy camera in a bedroom or changing room; domestic violence assaults where physical injury is inflicted; the violent felony of robbery when the perpetrator is aided by one or more others; various forms of stalking; distribution of child pornography for profit; public lewdness; endangering the welfare of a child; endangering the welfare of a vulnerable elderly person; bail jumping; and escape from police custody—to name just a few. As a result of this law, the offender in each of these cases will be presumptively released on his or her own recognizance without any bail. Presumptive release in these cases will be compelled no matter the offender’s prior criminal record. This is a direct threat to public safety.
In the federal system, and in many other states, a judge can specifically consider the danger to the community posed by a specific offender in setting bail or even remanding a criminal defendant to jail pending trial. That is sensible, in the interests of public safety and the safety of the community. The United States Supreme Court has specifically upheld preventive detention under the Eighth Amendment to the Constitution, where a defendant has been charged with a serious crime and may pose a danger to the community. Nonetheless, our state legislature has steadfastly refused to allow judges to consider the danger a person poses to the community at large in determining whether that person should be detained pending trial.
What’s more, under the discovery “reform” act, my office will have to turn over—within 15 days of arraignment—the names and contact information of the witnesses against these newly released defendants. Again, this is a shortsighted and disastrous law that will encourage witness intimidation and discourage witness participation in prosecutions or, worse, discourage victims from coming forward to report crimes committed against them at all.
Public safety was sacrificed at the altar of reform by our state legislature. The residents of our state will be dealing with the consequences of this terrible legislation for a long time to come.
Jim Farrell has worked in the Sullivan County District Attorney’s Office for 23 years, serving as the D.A. for the last nine. He is now running for county judge.
Context: Bail and evidence reform laws in New York State
NEW YORK —New York State recently passed sweeping criminal justice reforms that make changes to bail as well as overhaul regulations on how and when evidence is turned over in criminal cases.
The bail reform act, which will go into effect in 2020, will limit the number of people in jail awaiting trial and eliminate money bail— which allows defendants to pay a deposit, refundable if they attend all their court dates, in order to be released from jail. The act includes a few exceptions, including witness intimidation, sex offense misdemeanors and offenses for violating protection violations in domestic abuse cases. The measure requires judges to release many defendants awaiting trial.
The legislation also requires judges to set the least restrictive alternative to being held in jail and set conditions that will assure a defendant returns to court, such as electronic monitoring. In other words, the legislation accounts for flight risks by encouraging judges to find other ways to make defendants return for their court dates.
Though New York state had previously steered away from measures like this one, the act’s passing came in response to advocates nationwide who said that people—particularly people of color and low income individuals—were languishing in jail for too long, away from their families and jobs, for low-level offenses. Additionally, cash bail, advocates of these reforms said, made it easier for the wealthy to escape jail time, while poor people could not.
Cash bail remains an option to judges in limited circumstances and for most violent offenses.
The Discovery for Justice Reform Act was passed to allow more time for defendants to be made aware of evidence against them. Currently, the time period in which a New York prosecutor must hand over their evidence is timed to the date of the trial. In 2020, prosecutors must perform their “initial discovery obligations” within 15 days of the arraignment date.