A proposal by Gov. Andrew Cuomo to drastically change the state’s laws regarding bail for accused criminals has drawn praise from some and concern from others in the criminal justice system.
Cuomo’s proposed 2018-19 budget includes reforms to bail practices as well as other court procedure changes, mirroring bail changes in other states.
“When New York’s laws governing bail were enacted back in the 1970s, they were among the most progressive in the nation,” Cuomo said last month. “Unfortunately, the status quo is no longer acceptable.”
His proposal is to all but do away with bail for those accused of misdemeanors and nonviolent felonies, and have them released on their own recognizance or supervision pending trial, has caused trepidation for many in law enforcement, who worry it will affect public safety and raise costs for some agencies.
(The proposal does also call for a new system that would allow for “preventive detention” for some accused of violent felonies and deemed a significant flight risk or threat to public safety, however).
Washington County District Attorney Tony Jordan points to crime statistics that show New York is already among the safest states in the country.
“This is a drastic overhaul of a system that is working,” he said. “If we are safe, what are we looking to fix?”
Washington County Sheriff Jeff Murphy said the changes would pass on costs to county agencies that will be required to monitor more people who are out of jail. The recent additions of centralized arraignment programs, with mandatory defense counsel present, has already improved the arraignment system, he added.
Defense lawyers and advocates for those accused of crimes, however, believe the change will allow many who are accused of crimes to better assist with their own defense, and will lessen the impact that a person’s financial status has on whether they can get justice.
Queensbury lawyer Tucker Stanclift, chairman of the New York State Bar Association’s Criminal Justice section, said the defense bar believes the proposed changes are overdue, because the bail system “effectively punishes our citizens pre-trial” and “forces” guilty pleas from defendants who want to get out of jail.
He said the proposal balances needed changes with protections for public safety
There would still be allowances for judges in cases with circumstances that necessitate a defendant being held in jail.
“The ‘risk of flight’ analysis will not be changed,” he said.
Jordan said his office’s analysis of the issue found that of 81 people in Washington County Jail at a recent check, only six were there awaiting trial on misdemeanor charges. Two of those cases included extenuating circumstances, such as warrants or other court holds.
“When you look at their records, they are people who were appropriate for bail due to failure to appear (in court) or lengthy criminal records,” he said.
Jordan pointed out that drug sale charges and homicide counts such as second-degree manslaughter are considered nonviolent felonies, so people peddling deadly drugs such as heroin and Fentanyl will be put back on the street when they shouldn’t be.
He also questioned why Cuomo was having a public policy issue added to the budget, instead of vetted through the Legislature as most major legislative changes are.
David Gideon, a central New York town justice and president of the New York State Magistrates’ Association, said the organization of judges has not yet taken a formal position on the proposal, but will discuss it at a meeting in the coming weeks.
He said the plan raises questions that have not yet been answered. For instance, will judges be able to set bail for misdemeanors or nonviolent felonies when the defendant has already failed to appear in their case? he asked.
“For the most part, our judges understand that bail is to be used to secure a person’s appearance in court,” Gideon said.
Former Washington County District Attorney Robert Winn, who operates a private law practice and a bail bond company, said a lot of the changes are based on misinformation as to how many people charged with misdemeanors or low-level felonies are being held for lack of bail. Most are already released on their own recognizance, and the ones who aren’t deserve to be in jail because of their criminal records or other factors, he explained.
He echoed Jordan’s comments about the changes addressing a problem that doesn’t seem to exist in our region.
“Many judges will tell you bail is important to keep the court system running efficiently,” he said. “The claim that vast amounts of people are being held on small amounts of bail is untrue.”
The proposed changes will be negotiated as part of the ongoing state budget process, which will wrap up in or around April.
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