Is Bail Reform a Bust?

Sheriffs say yes, but others cheer changes

New York prosecutors, sheriffs and police chiefs have waged a coordinated campaign against the 2-month-old bail-reform law, alleging that dangerous criminals who would have been jailed under the old system were released to commit more crimes.

Largely ignored, say defenders of the law, have been far more common cases in which suspects have returned to court to face charges without being accused of additional crimes.

The reform law, which went into effect on Jan. 1 and eliminated cash bail for most misdemeanor and nonviolent felony charges, is designed to prevent the detainment of people accused of relatively minor crimes who cannot afford bail.

Opponents of the law claim “all these violent people are being let out of jail, and that’s just not the case,” said Alex Rosen, criminal division bureau chief with the Dutchess County Public Defender Office, during a Feb. 27 forum in Poughkeepsie.

Another panelist, Shannon Wong, director of the Hudson Valley chapter of the New York Civil Liberties Union, said there has been “a lot of misinformation and fear-mongering” about bail reform. She said the law fixed a situation in which “each year, tens of thousands of New Yorkers sat behind bars, pulled away from work and family simply because they couldn’t afford to pay their way out on bail.”

Proponents often cite the case of Kalief Browder, a Bronx man who was jailed at Rikers Island after being charged with stealing a backpack. Unable to post the $3,000 bail, he remained at Rikers for three years until the case was dropped in 2013. (Browder committed suicide in 2015.)

But critics say the law removes any discretion from judges, potentially allowing violent offenders back on the street. Under the law, judges cannot impose bail even if they believe a suspect could be a danger to the public.

Changes coming?

The criticism by prosecutors, police and state legislators such as Republican Sen. Sue Serino, whose district includes the Highlands, has prompted discussion about revising the law to restore discretion to judges.

One proposal, introduced by Democratic senators from Long Island, would eliminate cash bail altogether but give judges the power to jail suspects under certain circumstances, such as the belief that the defendant is dangerous.

Assemblyman Jonathan Jacobson, a Democrat whose district includes Beacon, called the Senate bill a “step in the right direction.”

“What has to be done is to give some discretion concerning keeping people off the street that could be of harm to themselves or others, with specific guidelines, and still getting away from the cash bail that was imposed in too many nonviolent crimes,” Jacobson said. “There should be specific reasons if you want to keep someone in jail.”

Another aspect of the law that has raised objections requires judges to wait 48 hours before issuing a bench warrant for a defendant who misses a court date.

When people get warrants, “it’s usually not because they’re fleeing facing the consequences of their case,” Rosen, the public defender, said. “Usually it’s because they couldn’t get a ride to court or their mother was sick or they were in the hospital or they couldn’t find a babysitter and they didn’t come or they legitimately just forgot about the court date.”

Serino doesn’t buy it and has introduced a bill in the Senate that would eliminate the grace period.

Lawmakers seem unlikely to repeal the bail-reform law. However, Assemblywoman Sandy Galef, a Democrat whose district includes Philipstown, joined Jacobson in predicting they will approve changes.

“I don’t think we’re going to go back to giving total discretion to judges because I think some of the problems probably related back to the judges,” she said. “But I would like judges to be able to look at other transgressions that somebody has had.

“We just need to be sure that the wrong people are not out on the street,” she said. “But also, if somebody has a minor offense, to be sitting in jail because they can’t pay bail is not what we’re about.”

New York judges can set bail for people charged with violent felonies, sex crimes and some domestic violence charges. And for some suspects who qualify for release without bail, judges can mandate conditions that don’t involve money, such as pretrial supervision and electronic monitoring.

Under the bill introduced by the Long Island Democrats, judges could decide on a case-by-case basis whether someone should be jailed. However, a suspect could only be imprisoned for specific reasons, including if he or she were judged to be a danger to public safety.

Putnam County

Two days after the Poughkeepsie forum, Putnam County Sheriff Robert Langley Jr. spoke at the Desmond-Fish Public Library in Garrison about his opposition to the law.

Unlike other sheriffs, Langley soon after the law went into effect named the suspects he had released and their alleged crimes.

Later, in additional press releases, Langley said the law twice required the release of a New Hampshire man, Rattana Phimmavongsa, who was arrested on Jan. 18 on charges he stalked a woman in Southeast and again on Feb. 11 after he allegedly violated an order of protection by repeatedly calling her.

(After his second arrest, Phimmavongsa was charged with two counts of first-degree criminal contempt, which are felonies; eight counts second-degree criminal contempt, which are misdemeanors; and one count of the unauthorized use of computer, but he could not be required to post bail because his case does not qualify as a domestic violence case, court officials said. However, he was ordered to have electronic monitoring and is scheduled to appear in the Town of Southeast Court on Tuesday, March 10.)

Langley claimed on Feb. 29 that the bail-reform law creates a “revolving door that gives somebody the opportunity, over and over, to repeat-offend.”

“Let’s write something good, something that works, that protects everybody,” said the sheriff, who lives in Philipstown. “Nobody is disagreeing that bail reform is needed. But not like this.” He said legislators failed to consult law enforcement when drafting the law but that officers “are willing to help” fix it. “We can do this right. We can do this fair.”

Langley suggested that the bail law change also could adversely affect those addicted to drugs. While in jail, addicts could “receive a lot of care.” Now, he added, “that tool is removed. There’s no intervention.”

Similarly, those living on the streets will likely feel the impact, he said, observing that “Putnam County has no shelter” for the homeless. He noted that some commit minor offenses in winter hoping to be sent to jail, a warm place with regular meals. Their crime sprees end in summer, he said.

Members of the audience, which included lawyers, responded that anyone accused must be presumed innocent until proven guilty; that under the old law bail practices could differ from judge to judge, producing gross inconsistencies and inequity; and that an alleged offender with enough money could pay bail and go home to await trial while those lacking money were confined in jail.

The sheriff replied that someone’s inability to pay bail reflects a problem with the amount, the failure of a poor suspect’s lawyer to challenge high bail charges, and inadequate state funding for overworked public defenders who represent indigent clients.

Langley also said that bail reform and discovery reform — which requires prosecutors to provide the defense with all the evidence it has collected within 15 days of an arraignment — burden law enforcement with new demands and estimated that his agency and the district attorney will each require an additional $500,000 annually to meet them.

Shrinking jails

In the meantime, the number of inmates in county jails has decreased, although Langley said the Putnam population was “in slow decline before the bail reform law came in” and that local crime has dropped by 25 percent in each of the past two years.

In Putnam, the average number of “unsentenced” inmates (suspects awaiting arraignment, trial or sentencing, or newly arrested parole violators) in February was 18, compared to 24 for December and 37 in February 2019, according to statistics compiled by the state Division of Criminal Justice Services.

In Dutchess County, the average number of unsentenced inmates was 101 in February, down from an average of 158 for December and 234 in February 2019. The county last year scaled back a proposal to build a new jail by 2023 with about 600 beds to what could end up being fewer than 300. The plan was revised after an analysis by the Dutchess County Criminal Justice Council that included alternatives to incarceration and the expected effects of bail reform.

Liz Schevtchuk Armstrong contributed reporting.