There has been much consternation over recent bail reform laws and the impact they are having on crime and safety. In some respects, the bail law achieves its purpose by reducing the number of people being held in jail solely because they cannot afford bail. Nobody should be in jail because they cannot afford bail.
The former bail system in New York was unfair, unjust, and discriminatory. It needed to be changed. Judicial and prosecutorial bias against people of color and the poor resulted in people going to jail for reasons other than for the offense they purportedly committed. The state legislature passed bail reform to end this unfair and discriminatory practice.
The problem is that the sweeping nature of the law now results in some defendants being released who remain a threat to the community. While statistics show there is only a limited risk of future violence, there are, in fact, cases where defendants are released and then soon commit further acts of violence. There are also a growing number of cases in which the defendant is released and commits another non-violent crime, sometimes many times over.
Many have concerns that this new system fails to protect the public. This issue must be addressed. Violent, post-release cases are unacceptable if they can be prevented. Non-violent post-release cases are still violations of other people’s rights, property, and person and should be prevented as well.
The answer lies in giving judges discretion when setting bail. This discretion should be accompanied by rules, protocols, audits, and review, but a judge should have the discretion to remand or hold a defendant if the circumstances are sufficiently established that the defendant remains a threat to others upon release.
In cases where a defendant is held, there must then be an immediate evaluation and, if possible, resolution to the case. If the case is going to be extended, then the custody of the defendant should be reviewed frequently with an opportunity for appellate review. Probationary supervision should be considered as an option and so a significant investment in probation departments, resources and personnel must be accomplished.
There is also an argument to be made that as an alternative to setting bail, a judge should remand, or confine to custody, any such of the above. Being held in jail would not be a matter of affordability, but as a consequence of the circumstances set forth above. This would negate the issue of who can afford to be released and who cannot. This option is worthy of further discussion.
Presently, the legislature is not willing to have that discussion. I think that they should.