New York’s bail reform law was swiftly passed into law during the 2019 state budget, a legislative maneuver that usurped the deliberative process and nearly ensured that key stakeholders would have limited say in the most significant changes to New York’s justice system in decades.
Reform activists have long called for changes to our nation’s bail system which allows people who can afford it to remain in the community while their criminal cases are pending. The principal intent of bail reform was to ensure equal justice for poor criminal defendants and the presumption of innocence, as well as to address the disproportionality of minorities in jails and prisons in New York State.
I share the concerns of many who are calling for a fairer and just legal system for all; but the rushed passage of this law, with minimal input from victims’ groups and the law enforcement community, has resulted in many serious public safety issues. Without significant revisions, bail reform will negatively impact public safety in underserved and largely minority communities where crime is more prevalent, and it will have a cascading effect on victims, witnesses to crimes and public safety for all New Yorkers.
Bail reform does not allow judges to consider a defendant’s prior criminal history or failures to appear in court, or to hold a defendant on bail unless the current charge permits it, and these individuals are released back into the community almost immediately. Consider a family dealing with domestic assault, gang activity, a string of burglaries, or drug dealing in their community. Prior to bail reform, a defendant would likely be held for at least enough time to allow the victim or witnesses to create a safety plan.
Criminal defendants have also been empowered by new expedited discovery rules intended to reduce plea deals that can sometimes be disadvantageous for those who can’t afford private legal counsel. The law allows defendants to inspect crime scenes and receive identifying information about victims, witnesses and law enforcement officials within a short 15-30 day timeframe. This provision will undoubtedly lead to harassment of victims and witnesses as retribution for criminal testimony and thereby make it more difficult to prosecute criminals.
I urge state lawmakers to consider the potential impact of this law on children, especially African American children and immigrants, who are more likely to be crime victims. Black youth are victims of violent crime at significantly higher rates than their white peers and are more likely to be victims of child abuse, robberies and homicides. Children who witness — and are victims of violence — are more likely to internalize trauma and engage in the types of risky behaviors that can lead them into criminal involvement.
Throughout my 30-year law enforcement career, I have personally spoken with thousands of inmates, including many incarcerated young black men, a population that this legislation was intended to help. Incarcerated men and women often report histories of family dysfunction, being victimized by childhood abuse and sexual assault, and having close family members involved in crime. Most are undereducated, have substance abuse and mental health problems and often feel hopeless. Without appropriate intervention to address the underlying criminogenic factors, these individuals will be intermittently incarcerated throughout their lives — and bail reform will do nothing to address the root of their contact with the criminal justice system. In fact, we need only to look next door to New Jersey to see that reductions in pre-trial detention have not addressed racial disproportionality in state prisons.
As a society, we have failed these individuals over many decades through misguided public policies, and a lack of political will to tackle the complex human service needs of the poor – and especially those with mental illness. The millions of public tax dollars that will go to effectuating the changes required for bail reform might be better spent on crime prevention and mentorship initiatives, homeless housing, investments in substance abuse and mental health treatment, and funding for our schools in poor and underserved communities.
This being said, it is unconscionable and reckless that there is no bail allowed for charges related to drunken-driving fatalities or unintentional homicides, and a lengthy list of other violent, though not “technically violent,” crimes. The fact that a defendant can be repeatedly absent from court and face no consequences is equally disturbing.
I urge New York’s lawmakers to amend bail reform to ensure that judges have discretion to set bail based on prior criminal history, a person’s flight risk, and whether they may pose a danger to themselves and/or the community. I also believe there should be a moratorium on all provisions related to expedited discovery to better understand its effects on law enforcement, crime victims and the public.
I urge lawmakers to look more closely at the myriad of social and economic factors that can lead to criminal involvement, and apply appropriate solutions.
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