More reform for bail reform

To the editor:

(re: “Bail reform far from perfect,” May 6)

As a worshipper at one of the vandalized Riverdale synagogues, I appreciate the special efforts by law enforcement authorities to bring the suspected rock-thrower to justice.

As a New York resident, however, I am concerned with the near-certainty that none of these efforts would have materialized had the crimes involved not so transparently been motivated by discriminatory animus. Our local elected officials appear to be more offended by the “hate” that presumably triggered the crimes than by the crimes themselves, and are willing to consider tweaking the Bail Elimination Act of 2019 to add more “hate crimes” to the list of “qualifying offenses” for which defendants can be subject to bail requirements, instead of being released on their own recognizance.

The problem with the bail law, however, is not the lack of hate crimes on the qualifying offenses list, but the exclusion from the list of too many serious and violent crimes — whether hate crimes or not. The alleged rock-thrower was released because the primary crime with which he is being charged, — criminal mischief, the intentional destruction of property of others — is not on the list. Neither is assault or arson in the third degree, unless deemed a hate crime.

Thus, one can sucker-punch and injure random people in the street, or toss hand grenades at and thereby damage random stores at night — when people aren’t around — and still not have committed a “qualifying event” for bail purposes.

As a result, dangerous criminals are released back into the street. It is no wonder that, in 2020, shootings reportedly increased in New York City by 97 percent, and murders by 44 percent. Sure, shooting and murder suspects are not directly affected by the bail law, but as per the “broken windows theory,” tolerance of smaller crimes (like breaking windows) leads to larger crimes.

The criminal justice system should be designed to protect the public from violent crime, regardless of the criminal’s motivation. The New York hate crimes law encompasses many types of offenses not subject to bail under the new bail law, including criminal mischief, and assault and arson in the third degree. If the bail law is to be amended, it should be amended to add to the list of qualifying offenses all the dozens of offenses listed in the hate crimes law — but without the requirement of discriminatory intent.

Defenders of the bail reform law argue that the bail system discriminates against the poor, who are less likely to be able to post bail. But the types of crimes considered serious enough to justify bail requirements generally cannot be excused by poverty. Those who commit such crimes and then are not released because of their inability to post bail put themselves in that situation through their own bad behavior.

That the new bail law left some crimes as qualifying offenses indicates a recognition of the need to ensure that defendants return to court and to protect the public from recidivist criminal behavior.

It is also argued that a defendant is “innocent until proven guilty,” and should not be imprisoned until proven guilty (through a trial or plea). But if you take this argument to its logical extreme, not only would the bail system be eliminated altogether, but a judge would not have discretion to detain a defendant without giving him the opportunity to post bail, no matter how dangerous or high a flight risk the criminal.

That the U.S. Constitution requires a “speedy trial” in criminal proceedings shows that the Founding Fathers anticipated cases where a defendant would be imprisoned even before the start of his trial, otherwise, what interest would the defendant have in a “speedy trial”? In addition, fewer types of crimes are being prosecuted nowadays, and the corresponding reduction in court cases should result in speedier trials for those who are prosecuted.

And finally, it is argued that whether a defendant is considered dangerous or not is irrelevant to bail determinations because of a longstanding New York law to the effect that a judge making a bail determination may only consider information relevant to ensuring the defendant’s return to court. However, there is a difference between limiting the judge’s discretion in setting bail for defendants who are eligible for bail, and denying the judge discretion to set bail at all.

Limiting bail determinations to “return to court” factors may have made sense when so many more offenses were potentially subject to bail, and the bail system may have been overwhelmed without this limitation. Now that there are much fewer types of crimes eligible for bail, however, it would make sense to grant judges more leeway in setting bail in cases involving qualifying offenses.

I suggest that rather than relying on this law as a crutch to support something so obviously flawed like the bail reform act, this law should also be amended to allow the judge to set bail based not only on factors relating to ensuring the defendant’s return to court, but also based on whether the defendant is deemed a threat to the public safety, if released.

Zachary Berman

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