Facts dispel misinformation on bail reform

There has been a lot of talk and some writings here in Greene County about the amendments to the existing bail law that go into effect on Jan. 1, 2020. Most of what I have heard and read predicts a staggering increase in the number of people who fail to return to court once given an appearance ticket. Much of that talk also predicts a massive crime wave caused by people who are released under the new amendments after being arrested for a non-violent felony or most misdemeanors. Is there any empirical evidence from the states and cities that have already eliminated cash bail for minor offenses to support these doomsday scenarios? Your editorial observation that we can only “hope” that these people, released without bail, won’t flee or commit more serious crimes is utterly baseless. The people you are referring to are charged with less serious crimes and are presumed innocent. What evidence do you or the district attorneys have that indicates they are likely to flee, or commit new, more serious crimes if released without bail? None.

Your Oct. 15, 2019 editorial following the Oct. 12-13, 2019 bail reform article which interviewed the district attorneys of Greene and Columbia counties paints a fearful but extremely one-sided picture of some imagined apocalyptic impact the Bail Reform law will have. In states that have already eliminated cash bail for many less serious and non-violent felonies and misdemeanors there has not been a rash of new crimes committed by persons released or a significant increase in “failure to appear” for court.

There is a lot of misinformation out there about the bail amendments that needs to be addressed.

Let’s start by looking at our current arrest and bail system. First and foremost, people should understand that crime is down, way down, and has been trending down for years. That has nothing to do with bail or bail reform. As a result, the number of people charged with minor crimes going to jail in lieu of bail is also down, but not eliminated.

When a police officer in 2019 arrests someone for most misdemeanors or a lesser non-violent felony, the officer has a choice to make: Do I issue an appearance ticket — which tells the arrested person that they must come to court on a certain date to answer the charge — or do I take that person into custody, and bring them before a judge to address the same issue — their return to court? My guess is that many if not most such arrests result in the issuance of an appearance ticket or traffic ticket (for DWI and AUO misdemeanors). This so-called “catch and release” has existed for decades. Under the Bail Reform amendments, the only change in this practice is that IF the person arrested on these lesser charges meets certain requirements, the police officer MUST issue the appearance ticket. What are those requirements? The person needs a valid ID; a verifiable address and contact information including phone numbers; no active warrants; no failure to appear during the past two years; the court may not need to issue any order regarding the matter; the charges do not involve sex offenses (Article 130 of the Penal Law), family offenses, escape or bail jumping; the person does not appear to need immediate medical or mental health treatment.

If the accused does not meet any of these requirements, the police officer can, but is not required to, bring that person in front of a judge for arraignment. If a person is charged with a more serious felony, sex or family offenses the police officer will bring that person in front of a judge for arraignment. Just like the current law.

In 2019 when a person is brought in front of a town, village or city court judge to be arraigned on any charge, the judge has to make a decision about the likelihood that the person will return to court to answer the charges. Based on the nature and seriousness of the charges, and the history of the accused regarding court appearances, the character and reputation of the accused, their connection to the community – employment and family, the judge can release the person in their own recognizance (ROR), require money bail (there are nine forms), several types of bonds (secured, partially secured, unsecured), or cash. The court is also supposed to consider the accused’s ability to post bail, and not set “unreasonable” bail.

What will change in 2020? For most misdemeanors and non-violent felonies, an accused MUST be released without requiring the posting of CASH bail or cash bond. The elimination of CASH bail in cases involving most non-violent felonies and most misdemeanors is the cornerstone of the bail reform amendments. Does the elimination of cash bail mean that people will just be released? No. Cash bail will be replaced with, in a proper case, NON-MONETARY conditions designed to assure the accused persons return to court to answer the charges against them. That is the ONLY legal purpose of bail. Despite what DA Stanzione has said, New York does not allow bail to be used for preventative detention. Just as currently exists, many people will be released ROR. Where the judge has some articulable concern about the person’s return to court, the new amendments provide for the imposition of non-monetary conditions on that person’s release. These range from requiring frequent contact with a pre-trial services agency; imposing travel restrictions; prohibiting possession of firearms or dangerous instruments; requiring supervision by a pre-trial services agency; electronic monitoring devices in cases involving more serious crimes; which could involve home confinement or other travel restriction such as to work and home. Neither the district attorneys nor your editorial makes any mention of these non-monetary release conditions.

What else does the bail amendment require? Remember the verifiable ID and contact information requirement? The officer is required to provide the court with that information when the office files the charges. The court is then required to contact the accused — by mail, phone, text, email, etc., to remind them of their upcoming court date. The amendments also allow a county to create a pre-trial services agency designed to assist the court and the accused. The PTSA can contact the accused to remind them of their court appearance date. It can also be used as a reporting agency, and in a proper case, a supervising agency. Albany County has one, as does Ulster County. A pre-trial release program was suggested for Greene County a decade ago. It was never enacted.

Here is a prediction of mine: After Jan. 1, 2020 there will be some cases where a person released without bail will fail to return to court, intentionally; there will be some cases where a person released without bail will commit a new crime. After all, those things happen now, under the current cash bail law. Don’t be surprised when it happens next year as well.

Greg D. Lubow is an attorney who practices law in Tannersville. He is a member of the New York State Association of Criminal Defense Lawyers and a former Greene County Public Defender.