You be the judge.
If a defendant came before you with an average of six felony arrests, five misdemeanor arrests, two felony convictions, six prior misdemeanor convictions and two prior failures to appear in court, should you have discretion to set bail?
If you thought you should be able to consider bail, or remanding the individual to jail pending trial, think again. As of Jan. 1, judges will not have that option for defendants charged with residential burglaries and robberies “aided by another” (both of which are classified as violent felonies), all but one of the most serious narcotics felonies, most non-violent felonies (including second-degree manslaughter and other crimes you may consider violent) and most misdemeanors.
It’s not just about individuals charged with new crimes. Under the new laws, on Jan. 1, 363 Queens defendants currently being held on bail will walk out. Those are just the numbers for Queens.
Judge Jonathan Lippman, Chairman of the NYC Commission established to study the closure of Rikers Island, predicted in a recent op-ed that these legislative reforms would result in “the release of more than 40% of the defendants held in pretrial detention” in New York City. There are currently approximately 5,000 people held in pre-trial detention on Rikers, so do the math: That means about 2,000 prisoners would be released.
If you woke up one morning and read that 2,000 prisoners had escaped from Rikers Island, you’d be terrified.
The criminal resume described in the first paragraph isn’t arbitrary. We looked at the 363 Queens defendants who could be released, and that’s their average record: six felony arrests, five misdemeanor arrests, two felony convictions and six prior misdemeanor convictions on average. Almost 80% of them are charged with felonies, not misdemeanors.
In every case, a judge looked at the defendant’s background, criminal record, the current charges, their history of appearing in court and other criteria in the existing statute and determined that bail should be set.
So what does the future hold? The last mass bailout, in October 2018, resulted in 23 Queens defendants being released on bail posted by Robert F. Kennedy Human Rights, a nonprofit. Eleven of the released defendants (nearly 50%) have been re-arrested for other crimes, a total of 14 times. Another eight bench-warranted; two are still at large. A staggering 83% did exactly what was predicted when bail was set: They committed a crime or fled. In just seven months!
Now extrapolate that across these 2,000 new cases.
These prisoners will be indiscriminately released because the Legislature refused to write a law allowing judges to consider public safety when setting bail. Forty-seven states and the federal government give judges that flexibility. Not New York.
These bail changes were buried in the budget bill. Most New Yorkers were, and still are, unaware of them. There is still time for the Legislature to correct it. It does not have to be all or nothing. The Legislature could create categories of presumptive release and restore to judges discretion to set bail. They could allow judges to consider the defendant’s danger to the public, as Mayor de Blasio, former Council Speaker Melissa Mark-Viverito and even Lippman have once supported.
Without any reforms to these reforms, we will start to see the results of this new legislation in New York. If the results of the Kennedy Human Rights experiment are any indication, New Yorkers should prepare themselves for literally thousands of career criminals back in their communities. An additional 3,000 prisoners could be released outside New York City.
I will leave you with one case; it is not a hypothetical. It’s a pending case. Weeks ago, a defendant was arrested for six home burglaries. His criminal history: five burglary convictions, four separate robbery convictions. He is a mandatory persistent violent offender, facing life in prison. A judge reviewed his new cases, his past and held him on bail. Under the new law, bail cannot be set on a residential burglary and the defendant must be released. Unless convicted before the new year, he will walk out of Rikers, cross the bridge and be back in our community, and he won’t cross that bridge alone.