EDITORIAL: IT’S TIME FOR NEW YORK’S DEMOCRATS TO SQUELCH THEIR INTRA-MURAL SQUABBLE OVER BAIL LAWS AND ENACT CLEAN SLATE INSTEAD.

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EDITORIAL

It's time for New York lawmakers to compromise with the governor on amending the state's bail laws and enact Clean Slate legislation. Being tough on crime means enacting Clean Slate. If the price is compromising on bail, it's worth it.

I'm a formerly-incarcerated journalist who has 40 years of lived experience with New York's criminal justice system, as a criminal, prisoner, parolee and, finally, journalist whose investigative reporting has spurred reform. In short, I know what I'm talking about.

For anyone who's missed the debate over amending New York's bail laws, here's what's happening.

Gov. Kathy Hochul (D) is using New York's executive budgeting process to try to force the state legislature to once-again weaken the state's landmark bail reform law which eliminated cash bail for most non-violent crimes in 2019.

The reforms were partially rolled-back in 2020 and again in 2022. The rollbacks moved some crimes that had not been eligible for bail under the reform back into the bail-eligible category. They also added criteria judges have to consider in all cases including a defendant’s history, if any, of compliance with court orders of protection, whether the defendant was ever charged with illegal gun possession or use and whether a defendant’s alleged crime caused anyone “serious harm.”

The practical effect of these added criteria makes a defendant’s “dangerouness” a factor a judge is legally-required to consider in deciding whether to set bail and, if so, how much bail should be. That’s true even though New York law does not explicitly allow judges to consider dangerousness in deciding whether to grant bail. New York is the only state in America that does not.

Now Gov. Hochul wants to give judges more power to deny defendants bail for alleged dangerouness by eliminating a key requirement of the 2019 bail reforms: that any restrictions on a defendant’s pre-trial, pre-guilty liberty must be “the least restrictive alternative and condition or conditions that will reasonably assure the principal's return to court.”

The elimination of this limiter or guardrail will implicitly add more weight and importance to a court’s inquiry into a defendant’s alleged dangerousness.

Hochul's fellow Democrats in the Democratic-controlled state legislature say they oppose adding dangerousness-either explicitly or implicitly. They've stalled the budget past its April 1 due date, and appear to be still standing firm. 

Meanwhile, Clean Slate-reform remains stalled while the bad blood between Gov. Hochul and the legislature spills all over the Capitol floor.

This makes no sense. It's time for democrats to stop their intra-mural squabbling, compromise on bail and enact Clean Slate. 

That's because, despite the fact that New York law does not explicitly allow judges to consider a defendant's dangerousness, judges do in practice routinely consider a defendant's dangerousness in deciding whether to set bail at all (for those limited, specified crimes that qualify for bail in the first place).  If a judge thinks a defendant is dangerous, they're going to deny that defendant bail by saying they’re a flight risk. If they won’t deny bail outright , they'll set bail so high the defendant will not be able to pay it. If a defendant somehow comes up with the cash, I've seen judges raise the bail higher so that they're not actually released. 

That's how it works in real life, not theory, regardless of what the law says. It's human nature. No judge wants to be responsible for someone getting out and committing new crimes, especially violent ones. That's why empowering judges to consider dangerousness won't, in reality, change anything in the mine run of cases.

At the same time, amending the bail laws to explicitly consider dangerouness would bring it out of the shadows and allow the legislature to mandate courts use scientific, fact-based rules to regularize and guide the dangerousness determination. For example, instead of judges making instinctive, seat-of-the-pants dangerousness evaluations in a 10-minute long court appearance, a progressive bail law would require science and data on recidivism be brought to bear and made part of a judge’s calculus of consideration.

Overall, making bail harder to obtain will not have any impact whatsoever on crime. No criminal ever thought to himself, "I better not commit this crime because I can't afford bail." 

Lawmakers’ legitimate concern about judges filling jails with impoverished defendants is satisfied by restricting the types of crimes eligible for bail in the first place. That’s where the real fight over bail is-not whether a dangerousness determination should be mandated.

On other hand, passing Clean Slate legislation would give the 2.3 million New Yorkers confined to an under-class because of old criminal convictions a real chance to start new lives in the workforce. And that, definitely, would have an appreciable impact on crime because every scientific study ever done on the subject has found former felons who are employed are much less likely to commit new crimes.

Clean Slate, not bail, should be Democrats' priority.

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