Just two weeks after it went into effect, state lawmakers are weighing changes to New York’s historic bail reform law. The push to rework the law to give judges the option to jail defendants pending trial has garnered support from local officials, including new District Attorney Dave Clegg and Ulster County Sheriff Juan Figueroa.
New York’s bail reform law, part of a larger package of criminal justice reforms, was signed into law by Gov. Andrew Cuomo last year and went into effect on Jan. 1. The law ends cash bail for nearly all misdemeanors and nonviolent felonies. Instead, judges may impose conditions like electronic monitoring or travel restrictions to help ensure defendants show up for court appearances. People accused of serious violent crimes including murder, rape and armed robbery may still be detained on bail or remanded to jail pending disposition of their case. A provision that would have allowed judges to hold defendants without bail if they were deemed a threat to public safety was included in an early version of the law, but did not survive negotiations in Albany, where some lawmakers argued that it would be used disproportionately against minority and poor defendants.
Opponents of cash bail said the system ran counter to the law’s presumption of innocence and represented institutionalized bias against the poor. Impoverished defendants, they argued, might remain in jail for months or even years awaiting disposition of their case, while other people accused of the same crime could go free simply because they had money for bail. Proponents of bail reform also argued that the system contributed to social breakdown in poor communities by causing people simply accused of crimes to lose jobs, homes and custody of children. The system, reformers said, also created an incentive for people held on bail for minor crimes to plead guilty — even if they were actually innocent — in order to be released with a “time served” sentence rather than be held even longer while awaiting trial.
But backlash against the new law began almost immediately as defendants were returned to the streets and, in some cases, committed new crimes. Pressure on lawmakers was amplified by social media, where law enforcement groups and others opposed to the reforms highlighted examples of defendants accused of new crimes just days or even hours after being released.
Locally, former Ulster County acting district attorney Mike Kavanagh, in one of his last acts in office, issued a press release describing the crimes and criminal histories of nine defendants recently released from the Ulster County Jail under the new law. Among the defendants on Kavanagh’s list are a man with five prior DWI convictions awaiting trial on a sixth drunk driving offense, an accused burglar with two prior felony and 42 misdemeanor convictions and a woman charged with criminally negligent homicide who allegedly sold a fatal dose of fentanyl. Many of the defendants, Kavanagh noted, had prior histories of skipping court appearances and, in one case, had to be extradited from another state after fleeing charges in New York.
“In my judgment, this ill-advised legislation was politically driven and rushed to passage,” Kavanagh wrote.
Clegg: Empower judges
Clegg, who defeated Kavanagh in the DA’s race running on a platform that embraced bail and other criminal justice reforms, said this week he also had concerns about the law as it currently stands. In particular, Clegg said, he was bothered by the fact that the law does not give judges the option to hold defendants in pre-trial detention if they are believed to be a threat to public safety. Clegg added that the law also does not allow defendants who skip court dates or flee the jurisdiction to be jailed pending trial once they are re-apprehended.
Clegg said he supported amending the legislation to give judges discretion to keep defendants in jail before trial in cases where their release might pose a significant threat to public safety.
“There are cases where somebody displays a level of mental disturbance or a level of emotional disturbance, where there’s a genuine concern for public safety and you want to be able to detain them,” said Clegg. “If that happens you clear up 99.9 percent of the concerns about bail reform and you still reform bail.”
On Jan. 15, State Senator Jen Metzger (D-Rosendale) joined the chorus of voices calling for reform of the reform bill. In a press release, Metzger announced that she would co-sponsor a bill that would allow judges to detain defendants without bail based on an individualized assessment of their threat to public safety and flight risk.
“The bail reform law passed last year sought to fix a system that everyone, including DAs and law enforcement, agreed was flawed, but the new law needs changes to better protect public safety,” Metzger stated in the release. “I have been meeting with stakeholders throughout my district on the reforms, and I believe we can strike the right balance.”
Ulster County Sheriff Juan Figueroa who, like Clegg, is a Democrat who ran as a criminal justice reformer, said in the press release that he supported Metzger’s proposed changes.
“The recent bail reform included numerous unintended consequences,” wrote Figueroa in the press release. “I agree with the premise of sensible bail reform, however, we must be cognizant of the victims and their families.”