New York State Bail Reform

New York State Bail Reform

     The topic of judicial discretion, particularly as it relates to pre-trial detention, has been a source of disagreement among lawmakers for decades. Sweeping “bail reform” legislation was haphazardly enacted in New York State in the year 2020, further restricting pre-trial detention of accused offenders, and “precluding money bail and pretrial detention in almost nine out of 10 cases” (Center for Court Innovation, 2020). A combination of poorly implemented change and a lack of allowable judicial discretion has resulted in the rearrest of non-bail eligible felony arrestees at a much higher rate, and for more serious crimes (New York City Police Department, 2020).

     In the year 2019, legislators in New York State proposed legislation that came to be known as “Bail Reform,” largely with the intention of “addressing the disproportionate impact of cash bail on minorities and the impoverished.” This reform plan would eliminate“both money bail and pretrial detention in nearly all misdemeanor and nonviolent felony cases,” and would mandate the release of arrestees for the majority of crimes other than specified categories (typically serious or violent felonies), or absent a qualifying reason such as a domestic-related offense (Rempel & Pooler, 2020, p. 7). Essentially, offenders are eligible for an “ROR,” or a “release on recognizance” in pre-arraignment and pretrial situations at a higher rate than ever before (New York State Unified Court System, n.d.). Additionally, judges have been granted limited discretion in setting bail for specified cases, however, they are still prohibited from considering a defendants’ “dangerousness” or risk to society in the deliberation process for pretrial detention (New York State Senate, 2022). While the reduction of jail population was one of the intentions of this reform plan, the question remains as to whether public safety concerns have been adequately addressed.

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Judicial Discretion

     Judicial discretion “refers to a judge’s power to make a decision based on his or her individualized evaluation, guided by the principles of law” (Cornell Law School, n.d.). This power is derived from both statute and case law, and can be exercised by a judge in areas of the judicial process in-so-far as allowable by law. The United States Supreme Court decision established in United States of America, appellee, V. Anthony Salerno and Vincent Cafaro, defendants-appellants (1986) determined that judicial discretion in requiring pretrial detention based on elements such as a defendant’s risk to public safety is in fact constitutional, and does not violate the Due Process Clause. The length of detention must be reasonable so as not to “constitute punishment,” and must be based upon clear and convincing evidence of the danger that the individual poses to society, as well as their propensity toward recidivism (Justia.com, n.d.). This authority allows a judge to exercise ethical and lawful discretion on a case-by-case basis where the release of a defendant may pose adverse risks to society. However, New York State has essentially prohibited this practice since the 1960’s as a result of State bail reform policy, largely due to ethical concerns (Merkl, 2019). Bias and partiality in implementation were cited as the primary reasons for restrictive legislation at the State level. Despite perceived failures in a historical context, new bail reform policies are significantly less restrictive on criminals resulting not only in recidivism, but also in the occurrence crimes of a more serious nature. According to data released by New York State, “23% of those freed on supervised release were re-arrested on felony charges from January 2020 through June 2021. In all, four out of every 10 individuals placed in the supervised release program from Jan. 1, 2020 through June 2021 were rearrested after being freed (Smith & Bhat, 2022). These statistics suggest a need for judicial discretion in pretrial detention in New York State.

The Need for Change

     In September of 2020, a Long Island man was arrested after being accused of burglarizing a homeand forcibly raping a female victim therein. Because of the time needed to gather and process DNA, as well as other physical evidence, the perpetrator was only initially charged with crimes that prohibited cash bail being set, mandating his subsequent release. Two days later, the perpetrator returned to the victim’s home wearing clown make-up, intimidating the victim on the home surveillance system that was installed as a result of the burglary and rape. The suspect later dismantled the surveillance system, and burglarized the home once again before ultimately being arrested and indicted on multiple felony charges (Garger, 2021).

     This serves as a prime example of a case where allowing judicial discretion in refusing a defendant pre-trial release may have protected a victim of a sex crime. The suspect in this case was a career criminal, and had an extensive, documented history of mental health issues with local law enforcement. Had the judge been given the ability to consider “dangerousness” of the offender, a crime victim who would be needed to testify in future proceedings could have been protected from witness intimidation, or the possibility of additional physical harm. Having the victim of a crime testify in court is an arduous task in itself for law enforcement, as there is often a significant reluctancy on the part of the victim, particularly in crimes of a sensitive nature. The lack of protection afforded to victims under the new bail reform legislation makes this task all-the-more undesirable and unlikely for crime victims. Allowing judges to make legally-grounded, ethical decisions as to the custody status of offenders is a critical aspect of public safety.

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