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#Hochul’s solutions won’t do much for bail-reform pit-falls

“Hochul’s solutions won’t do much for bail-reform pit-falls”

Gov. Kathy Hochul has a list of “reforms” to New York’s bail-reform law she wants the Legislature to include in the budget due April 1. It’s about time she acknowledged the need for fixes as crime continues to surge. She’s not really offering any, though: Her plan would do little to solve the problem of career and dangerous criminals being released after arrest for a host of crimes.

Thanks to the 2019 legislation, judges are not allowed to consider dangerousness or risk of reoffending when evaluating a defendant for bail — unlike every other state in the country and the federal government. They are not allowed even to set bail on a large list of crimes; when they are, they must set the least restrictive bail conditions possible.

Hochul proposes allowing public-safety considerations for setting bail for some crimes — but almost all those crimes are already “qualifying offenses,” which means a judge can now set bail or remand the defendant. She’d simply add a short list of gun-related crimes to those “qualifying offenses.”

Hochul calls these “the most serious felonies,” but she only considers them “the most serious felonies” when they’re committed with a firearm. Public-safety considerations wouldn’t come into play for the following crimes committed with a knife, baseball bat or any other dangerous instrument: attempted murder, rape, robbery, burglary, first-, second-, and third-degree assault, grand larceny, drug sale or possession (even fentanyl or kilo-weight drugs), car theft, menacing, stalking and hundreds of other offenses. Judges would still be barred from setting bail for public-safety reasons for these crimes unless the defendant uses a firearm during the commission — and for any misdemeanor crimes — no matter how extensive their criminal history.

These changes would create odd anomalies. They’d allow a judge to consider public safety if a defendant is arrested on school grounds with a gun (an E felony) but not if that same individual tries to kill a rival gang member by stabbing him on a public street (a B felony). A judge could consider public safety on murder charges but not attempted murder — unless the defendant used a firearm.

EMS personnel are seen assisting the victim of an assault in the subway.
If one were shoved in front of a subway train, the perpetrator would be not be tried with a “serious offense” under bail reform.
Robert Mecea

Trying to kill someone by stabbing him with a knife, beating him with a baseball bat, running him down with a car or shoving him in front of a subway train does not qualify as a “most serious” offense, so a judge could not consider public safety when setting bail. A judge could consider danger to the public for aggravated criminally negligent homicide (a C felony) but not knifepoint rape, robbery or burglary (all B felonies).

Hochul also proposes allowing police officers to make a summary arrest of some individuals, bringing them into court for arraignment. You see, under “bail reform,” cops can only issue desk-appearance tickets to those charged with a misdemeanor or an E felony (except under very limited circumstances). This is like a traffic ticket requiring you to appear in court at a later date.

She would allow police to make a summary arrest for, among other things, crimes committed on the subway. So if someone assaults you on the subway, that person could be arrested. But if someone assaults you on the street as you are walking to the subway, the police can only give a summons. Same crime, same defendant, just a different location.

Assault as a hate crime? The cop could arrest the defendant. But if you are assaulted because you look vulnerable, the cops could only give the defendant a ticket.

There is simply no better proof that Hochul’s plan is press-driven. Gun crime is up and in the headlines, so she has a proposal for that. Subway crime is up and in the papers? Here’s another proposal. Hate crime? Yet another.

This whack-a-mole approach to “reform,” designed to deal with the crime of the moment, will not work.

A view of the entrance at the Rikers Island jail facility.
The bail reform laws passed in 2019 allowed thousands of inmates to skip jail time at Rikers Island and across the state,
EPA/JUSTIN LANE

Hochul and our other legislators simply must face the fact that the bail laws passed in 2019, which resulted in the release of more than 2,000 inmates from Rikers Island alone and thousands more statewide, were a terrible mistake. It’s a problem too big to handle with cherry-picked solutions. You cannot legislate for every crime, every defendant, every motive for a crime and every possible scenario that will come before an arraignment judge.

Judges must be given the ability to consider public safety and the risk of a defendant reoffending when setting bail — period. They must be able to consider setting bail on every crime. They must also be allowed to set bail on a defendant who fails to abide by the conditions of their release.

Why is this so hard to understand? Let’s stop with the Band-Aids and do what is right for the people of this state.

Jim Quinn was executive district attorney in the Queens DA’s office, where he served for 42 years.

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