John Faso: New York's Bail Reform Mess | WAMC

John Faso: New York's Bail Reform Mess

Feb 25, 2020

Last Friday, Albany County Sheriff’s deputies arrested a 23-year old Schenectady man for driving without a license.  According to the Albany Times Union, the man’s license had been suspended 26—yes 26— times.  Such aggravated unlicensed operation is a felony under New York law.  The license suspensions had been issued because the driver repeatedly failed to pay fines and appear in court over the past three years. 

The defendant faces a charge for felony aggravated unlicensed operation of a motor vehicle. The Times Union report further states that the man was “arraigned and released”.

“Arraigned and released” because New York’s new bail and discovery reforms enacted in last year’s state budget eliminated cash bail for entire categories of offenses deemed by lawmakers and the governor to be “non-violent”.  These changes were, in part, justified by the unfairness of holding criminal defendants in jail if they could not afford post bond. Advocates for change also charged that the prior system was discriminatory against racial minorities.  

Yet, it is preposterous that the new law would require someone who had so flagrantly ignored prior orders to appear in court to be released without bail. 

And there are others.  The New York tabloids have been filled with stories of people arrested for bank robbery, assaults and domestic violence, including violations of orders of protection being released without bail.

Assembly Speaker Carl Heastie has been adamant that the new laws will not be amended, saying more time is needed to fully assess the changes.  Heastie and others have argued that affording judicial discretion to assess the dangerousness of defendants and their likelihood to appear in court will introduce the possibility of racial bias in their decision-making.  These arguments seem to contend that the New York judiciary can’t be trusted to fairly administer justice and that their decision-making is permeated with racism.  Such a charge is absurd.

The governor and legislators only have themselves to blame for this mess.  Instead of consulting with prosecutors and law enforcement professionals as to the real-world consequences of how these reforms could be implemented, they only consulted with progressive activists and self-styled social justice advocates.  Those folks certainly have a place in this discussion but not the only place.

Instead of cramming these far-reaching changes into a state budget, as they did last year, the legislature should have separately considered the issue after public hearings that afforded all perspectives to be heard. 

New discovery rules require prosecutors to turn over evidence within 15 days of indictment to defense attorneys.  While prior rules were often unfair to defendants, these new timelines are wreaking havoc in District Attorney’s offices throughout the state.  It is widely known among prosecutors and police that state crime labs will not be able to process evidence on a timely basis requiring dismissal of many cases.  Yet the legislature and governor apparently gave no consideration to this aspect of the legal process.

State crime labs are also substantially behind in processing rape kits essential to bring successful prosecution of sex crimes.  Instead of fixing that problem, the new discovery laws will compound these delays.

Some Democrats in the state Senate and Assembly are now attempting to backtrack on their prior votes in favor of bail and discovery reforms.  Quite simply, they’re feeling the political heat as they well should.

Rare among state issues, bail reform has captured the attention of the media in every part of the state.  Not a day passes without a story or TV report about another accused criminal being released without bail for crimes that shock the conscience of average citizens in the state.  Public polling indicates that prior support for bail and discovery reforms has melted away, with solid majorities of the public across the entire state wanting the legislature to repeal or change these laws.

The legislature has until mid-June to fix these problems.  If not, a bigger problem may await them on Election Day, November 3rd.

Former Representative John Faso of Kinderhook represented New York's 19th House district in the 115th Congress.

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