CARMEL, N.Y. - Criminal justice activists have long advocated for a change in New York State’s bail system, saying cash bail creates two separate levels within the courts—one in which people of means can get out quickly and return to their families, while the underprivileged accused of low-level crimes remain in jail awaiting trial, away from their children and jobs.
On Jan. 1, a new law went into effect that sought to remedy this problem. Criminal courts are now prohibited from setting cash bail for most misdemeanors and nonviolent felonies.
While that may sound good on paper, critics say the well-intended law has caused chaos within the criminal justice system, releasing potentially dangerous criminals back onto the streets and putting the population in danger.
Here in Putnam County, three incarcerated men were recently released under the new law, including Javier Lorenzano-Fercano, who had been charged with felony vehicular manslaughter and leaving the scene of an accident, because the crime was considered to be “nonviolent.”
County District Attorney Robert Tendy said the new law creates problems on several fronts—one being the difficulty in getting offenders to return to court when no bail is set.
“It is going to mean a lot more bench warrants,” Tendy told Mahopac News. “We had a pretty progressive bail statute based on whether they are a threat to flee. I thought it was a pretty good system.”
Tendy said there are now 40 to 50 crimes on the books for which bail can no longer be set.
“Some are quite serious, even though they’re considered ‘nonviolent,’” he said. “Now, if you’re caught with a kilo of heroin, bail can’t be set.”
Tendy said the new law is particularly egregious because the state is struggling with an opioid crisis. He said some defense attorneys don’t like the new law because if they have a client struggling with addiction, they can no longer leave them in jail to detox, which is something families will occasionally request. He said the goal has been to get the addict into rehab or appear in the Putnam County Judicial Diversion/Treatment Court, but that can’t be done until they get their minds clear and become more agreeable to the idea. Having them detox in jail can help with that, he said.
However, state Sen. Pete Harckham called that an “old school way of thinking.”
“There are arraignment diversion programs that can be utilized,” he said. “If this is the first time that we are touching someone [for addiction] in the criminal justice system, it is an indication that the system has failed.”
But Tendy argues that the new law wasn’t well-thought-out and that law enforcement officials, prosecutors and judges should have been consulted.
“[Lawmakers] listened to special-interest groups and lobbyists—some well-intended—but they owed it to their constituents to listen to the attorneys who live in this world,” he said. “They formed opinions that the current system is racist and impacts poor people, and an argument can be made if it has disproportionally impacted people of color and poor people. But if that is true, you fix that problem. You don’t start releasing people into the street. The impact has been immediate, and people are dying from it.”
Last week, the NYPD released its first monthly crime stats since the state enacted the bail-reform initiative, and it shows an increase in nearly all crimes except murders and rapes. That includes a 16.9 percent increase in all major index categories, with shootings up 27 percent, robberies up 35 percent, burglaries up 18 percent, auto thefts up 70 percent, grand larcenies up 10 percent and felony assaults up 8.5 percent. Conversely, murders are down nearly 20 percent. Rapes are also down. But the bail-reform law does not impact the last two crimes since those violent felonies still require bail.
However, Harckham says that the new law was not the sole factor in NYC’s spike in crime.
“That 17 percent could be a myriad of factors and indicative of many things,” he said. “It’s wrong [to blame the new law]; it’s hysteria. There was a case where the judge had discretion [about bail] and didn’t use it and then blamed it on the bail law.”
Tendy said it’s ironic that if an offender has a reputation for not showing up for court dates, judges still can’t impose bail under the new law.
“This is not reform, it’s foolishness,” the DA said. “If you have a person who has a history of not returning to court and law enforcement locates them a year later and drags them back to court, you can’t set bail for a charge of bail jumping.”
Most agree the old law needed to be changed. But what those changes should be is at the center of the debate.
“The bail system needed to be overhauled; it was a fundamentally flawed system,” Harckham said. “You are supposed to be innocent until proven guilty and it shouldn’t be based on income. It was a racist and a flawed system.”
Harckham said that if the new law is going to be changed, it should be done based on facts and not hysteria.
“We are open to making enhancements and amendments for public safety and I think you will see changes made, but they have to be fact-based changes.”
But Assemblyman Kevin Byrnes, who voted against the bail-reform change, said the new law shouldn’t be tweaked or adjusted; he says it needs to be thrown out and legislators need to go back to square one.
“It needs to be fully repealed, and we need to start over,” he said. “Tweaks won’t do it. We need to allow judges the discretion; they are the ones best suited to make these decisions, not some legislators in Albany.”
Both Tendy and Putnam County Sheriff Robert Langley said the bail-reform law is affecting how law enforcement does it job and is demoralizing for investigators.
‘It affects morale,” Tendy said. “A lot of work goes into a case, sometimes round-the-clock work. Then you finally make the arrest and have good evidence and then the suspects are immediately released and [the investigators] have to ask, ‘What are we doing this for?’”
Langley said one of his office’s greatest frustrations is that detectives and deputies now have to go back to the same complaints involving the same defendants.
“It’s a revolving door,” he said. “You have people committing the same crimes to support themselves because they either have a substance-abuse problem or they don’t have a job and need money. If someone is a repeat offender, that’s problematic for society.
“We put a lot of time into putting together a discharge planner to help them overcome addiction,” the sheriff continued. “We have a caseworker, an employee from Arms Acres. The planner evaluates them to see if they can be an outpatient or in-patient in a controlled environment. Social Services makes sure they have all the paperwork in order, so treatment continues. This [new law] has thrown a monkey wrench into all that.”
Tendy said the new law was “almost encouraging” offenders to commit crimes. “You don’t have to worry about spending any time in jail and don’t have to worry about cleaning up your act. It’s a dangerous message to send,” he said. “You are almost encouraging them to commit more crimes.”
Langley also said that it makes it harder for investigators to use informants during drug investigations.
“It puts informants in harm’s way,” he said. “When a suspect gets put right back out on the street, the first thing they’ll do now is look for the last person that they sold to. It’s hard now to find people to help us.”
Tendy said it seems as though many lawmakers didn’t even read the complete bill before voting on it, because if they had there would have been a different outcome. But Byrne said everyone knew exactly what they were doing, both those who voted “yes” and those who vote “no.”
“I reject that that argument,” Byrne said. “Everyone knew, and we sounded the alarm that it was going to be a problem. We did debate this. I had conversations with a lot of folks because it was outside my expertise. A lot [of legislators] knew there were strong objections but did it anyway.”
Gov. Andrew Cuomo has said he would be amenable to changing the law yet again to address some of these concerns, but for some, the question is how and when. Tendy said it can’t happen soon enough
“They are taking way too long,” he said. “If I was a legislator and knew that someone who was going to die was my child [as a result of the law], I would move heaven and earth to get this changed immediately. This is an easy fix. You have the five [New York City] boroughs wagging the dog that is New York State.”
Byrne said the original bail-reform law was part of the budget package. He said that can’t happen again with any revised version because it would take too long.
“There’s a huge problem when we are ramming it through in the state budget,” he said. “We voted on it at 3 a.m. it’s not good governance. But I am encouraged that some in the majority have signaled they are willing to revisit it. But I don’t think ramming it through in another budget [will work]. We need a standalone clean, full rebill; start over with public hearings. Some reforms can be made—some were incarcerated for an unfair period of time. We can have those conversations. Advocates say New Jersey did it, but they did it differently over a couple of years and funded training.
“Let’s do it now; we shouldn’t wait for the budget,” Byrne continued. The criminals know about this, and they are using it and gloating about it. It is offensive and demoralizing.”
Harckham said that he, too, knows some changes need to be made but thinks it will indeed happen when the budget is finalized in March.
“If we can get something done sooner, we will,” the senator said. “We have to get everyone on the same page and the governor too.”
Harckham said he’s met with Tendy and commiserates with some of his concerns.
“I appreciate very much the approach Bob Tendy is taking,” he said. “We met for two hours. We are looking for actual facts and what incidents may or may not have occurred because of [the new law]. I do think they have some legitimate concerns and I appreciate them sharing them with me in a constructive way. If someone is a proven flight risk, if someone has a history of noncompliance, we should let the judge take that into account.”
County Executive MaryEllen Odell also complained that the new law took the decision-making process out of the hands of the judge.
“They can no longer listen to the facts and weigh whether the person in front of them poses a threat to society,” she said. “Instead, judges have no choice in most cases but to just release people who have been accused of everything from assault to stalking to criminally negligent homicide.”
She also agreed that some changes to the law were needed, but the current version of bail reform goes too far.
“We don’t want to see anyone whose situation doesn’t warrant it be kept in jail needlessly while awaiting trial, but that’s where a judge’s discretion comes in,” she said. “Legal experts say that in some cases being held in jail on bail before a trial can actually help a defendant. Those who are suffering from drug addiction or mental illness often have more support services available to them in jail than when they are released. Considering we are in the midst of an opioid epidemic that is killing thousands of people every year, requiring addicts to spend time in a drug-free environment can be lifesaving. Again, this should be up to a judge who has studied all the facts to decide.”