27 Mar Bail Reform
New York’s Bail Reform Rumbles ‘Neath the Surface of the COVID-19 Crisis –
My Thoughts and Opinions
The Hon. Nikki J. Moreschi
Glens Falls City Court, Criminal Court Part
We are in the middle of a health crisis. As such, once hot-button issues are placed on the back burner. That has occurred somewhat with the Bail Reform Legislation, though it has come up again during the pandemic. Gov. Cuomo had informal discussions with prosecutors, criminal justice advocates and NYPD Commissioner Dermot Shea a week or so ago to discuss potential changes to New York’s bail laws.
The governor said the talks were inconclusive, but maintained that tweaks to the state’s criminal justice reforms will be made in the budget — due April 1. How that is going to happen is anyone’s guess when some senators are quarantined.
It has been mentioned that some of the changes to the bail reform include granting judges the power to set bail on defendants up before trial if the judges deem them “dangerous.” The details of the new “dangerousness” standard are not clear. However, there appears to be a distinct possibility that some version of the new standard could end up in the budget bill.
As a refresher, in April 2019, New York passed legislation on bail reform to update a set of state pretrial laws that had remained largely untouched since 1971.
The bail reform was not met with welcome arms. Even before the effective date of January 1, 2020, there were outcries. The support plummeted in the following month. A Siena College poll on February 24, 2020 showed voters’ support for the change plummeted since April 2019, when the reforms were approved. In April 2019, 55% of voters thought ending cash bail for most misdemeanor and nonviolent crimes was “good for New York,” compared with 38% who thought it was bad. In February, 2020, the opinion flipped: 59% said ending cash bail in most cases was bad policy compared to 33% who said it was a positive change.
Opponents — including many police chiefs and county district attorneys — argued that the law was overly permissive and potentially dangerous, allowing the quick release of defendants on a variety of serious charges, including types of stalking, assault, burglary, drug offenses, arson and robbery.
For reformers, the changes to the bail law were long overdue and deeply important: The new law would mean that thousands of people in jail awaiting trial would be released, allowing them to return home, safeguard jobs and families and maintain stability in communities decimated by decades of incarceration.
For the Judiciary, we were, and still are, caught in the middle. As a trial judge in Glens Falls City Court, I am on the front lines of the pre-trial bail decision at arraignment. Since the law went into effect, I have felt that my voice has been lost. I no longer have the ability to analyze the facts before me and make an educated decision as to whether a particular defendant poses a risk of flight. In 90% of the cases before me, that decision has already been made by the legislature. I am constrained. When I took my judicial oath in 2014, I swore to uphold the law, whether or not I agree with it.
The New York State Commission on Judicial Conduct has given fair warning to judges that professional sanctions could be imposed should they choose not to follow the law. The disciplinary commission advised judges will be asking for punishment if they flout the state’s bail law to make a political point. See New York State Commission on Judicial Conduct Annual Report released March 1, 2020.
People want to know my stance of the bail reform. It has come up regularly as part of my Judicial Campaign for the seat of Warren County Judge. My answer is this: some of the changes were necessary, but I believe the key stakeholders such as law enforcement, jails, private attorneys, district attorneys, public defenders, probation, and judiciary, to name some, should have been given the opportunity to participate in the drafting of the legislation by providing professional opinions and voicing their concerns to minimize the law of unintended consequences and reduce some of the illogical results of the bail reform in application. It does appear that there has been some say from the stakeholders with regard to proposed amendments this April. That is progress. I also firmly believe that judges should be given some discretion in deciding when to keep criminal defendants in jail. Maybe this lies in the proposed new “dangerousness” standard. I have yet to see a draft.
Either way, I find that I want my voice back. If judges were given some leeway in a limited number of cases, we would be able to make a judgment call on pre-trial bail on a case-by-case basis that could protect the community. As a Judge, it is the community that I serve and the law I am bound to uphold. In order to do the best job I can do, I need my discretion. I need my Independence. I need my voice.