COMING UP ON CONNECT NEW YORK, WE'LL DISCUSS THE USE OF CASH BAIL IN THE EMPIRE STATE, INCLUDING WHETHER A DRAMATIC OVERHAUL OF PRE-TRIAL DETENTION LAWS FOUR YEARS AGO HAS NEGATIVELY IMPACTED PUBLIC SAFETY.
ALL THAT, AND MUCH MORE, COMING UP NEXT.
♪ ♪ ♪ ♪ WELCOME TO CONNECT-NEW YORK, I'M DAVID LOMBARDO - HOST OF WCNY'S THE CAPITOL PRESSROOM, A DAILY PUBLIC RADIO SHOW, BROADCASTING FROM THE STATE CAPITOL.
ON TODAY'S SHOW WE'RE GOING TO TALK WITH A PANEL OF CRIMINAL JUSTICE STAKEHOLDERS AND EXPERTS ABOUT THE PRE-TRIAL DETENTION LANDSCAPE IN NEW YORK, WHICH HAS BEEN AN EVOLVING PICTURE IN RECENT YEARS.
BUT FIRST, OUR PRODUCER - SUSAN BITTER - HAS PUT TOGETHER A HIGHLIGHT REEL FROM THE BAIL DEBATE AT THE CAPITOL OVER THE LAST YEAR, INCLUDING THE POLICY CHANGES IT PROMPTED IN THIS YEAR'S STATE BUDGET.
LET'S TAKE A LOOK.
>> This bill, this proposal, that is before us is a half-baked cockamamie attempt to deal with bail reform.
Our governor, earlier in the year, said she wasn't going to do anything on this.
Apparently she got a few poll numbers back and decided, oh my God, there is a problem.
This is a joke.
>> I believe that rolling back bail was not the answer here.
This is being done, of course, under bad policies.
This was not introduced in a budget proposal!
This was not introduced in a 30-day amendment.
This was not introduced in a 21-day amendment!
This was pounded on us.
This was a hijacking of a budget serving process in an institution that I love and I respect and it is my greatest honor to serve in.
>> I would say we can agree that the bail reform law, as written, leaves room for improvement, and as leaders, we cannot ignore that.
When we hear so often from New Yorkers that their top concern is crime.
>> You know, the spike in crime is national.
And our bail reform laws are certainly not responsible for a spike in crime across the country.
We did this reform, not because we woke up one morning and decided it was a good thing to do and we did a, let's do b.
We did it because it has long been recorded that there has been an extreme disparity in the treatment of people in the criminal justice system who are poor, who are black, who are brown.
>> The data is also with us, you know.
We look at the recent studies at John Jay College, the criminal justice agency and others, bail reform is working for the lower level offenses not eligible for bail and received recidivism has gone down.
But we are seeing an uptick in recidivism.
People reoffending when they're out.
Today we are here to announce a conceptual agreement has been reached on the FY'24 budget.
>> Last year I stood here and spoke about the cruelty of the system, a system that places incarceration above all else and hands out jail sentences to black and brown people based on third grade reading.
I can't believe that in 2023 we are tripling down on this level of cruelty.
When I came to Albany, I said I came here for four reasons: To advocate, agitate, legislate and litigate.
The three have not yielded justice.
So I am left with no other choice.
I will see you in court.
>> ND NOW - TO DISCUSS THE MOST RECENT TWEAKS TO THE USE OF CASH BAIL IN NEW YORK AND CONSIDER THE BEST USE OF PRE-TRIAL DETENTION MOVING FORWARD - WE'RE JOINED IN THE WCNY STUDIO BY BILL FITZPATRICK, WHO HAS SERVED AS ONONDAGA COUNTY'S DISTRICT ATTORNEY FOR MORE THAN THREE DECADES.
ERIK TEIFKE, FIRST ASSISTANT PUBLIC DEFENDER FOR MONROE COUNTY, LAURYN GOULDIN, A PROFESSOR WITH SYRACUSE UNIVERSITY COLLEGE OF LAW, AND JOSH SOLOMON, WHO HAS BEEN COVERING THIS ENTIRE DEBATE FROM THE CAPITOL FOR THE TIMES UNION.
THANKS EVERYONE FOR JOINING ME.
I really appreciate it.
And I want to kick things off with you, Lauren, getting a baseline understanding of pretrial detention and the use of cash bail in New York prior to 2019.
So can you pretend for a second that we are all your first-year students, maybe and how would you describe this landscape and how bail has traditionally been used in New York?
>> Sure.
So in New York, I think, as in other states across the country, we have had a history of using cash bail as a mechanism for managing pretrial risks.
So judges in the pretrial phase are making assessments about whether defendants are likely to return to court.
In many states in the country, they also are making judgments about defendants are opposing public safety risks and jurisdictions across the country, until, you know, the last five or 10 years, they were regularly using cash bail as a way to manage the risks.
And they would set the risk and if they could not pay that amount, they would be detained until trial.
>> Is that something that has ever been part of New York's bail progress that's a big question.
So it's not explicitly supposed to be a justification for pretrial detention in New York.
But for decades people have understood that judges making pretrial decisions are factoring their judgments whether they think someone poses a risk before trial.
>> What has been your experience in courtrooms when it comes to the unspoken idea of using dangerousness as something to determine whether or not bail should be issued prior to the adoption of the 2019 bail laws?
>> Lauren is exactly right.
It was not written into the law but a factor considered.
Obviously if I stood in front of a judge with somebody accused of embezzling $10,000 from a bank, I would make a different bail argument than I would with a serial killer or child month molester even though the statute in New York says Tom reason for bail is to ensure reappearance, not necessarily the nature of the offense.
Or the dangerousness of the accused.
New York is unique in that respect.
49 other states and the federal government allow what rational people think would be proper, the dangers of this defendant before I release them back into society.
>> Did you see that similar dynamic play out in courtrooms in Monroe County?
>> Sure.
There is the law and wherever you have discretion, there is the potential for at abuse of that discretion.
Which we saw regularly from the bench.
You have to keep in mind that discretion is what got us here.
New York State reached a tipping point in 2019 where we decided to overhaul our bail laws.
We didn't overhaul them because they were too fair.
We overhauled them because they were extremely unfair and had been for a long time.
They were dated.
Hadn't been tinkered with since 1971.
It was during that period of time that we saw significant racial disparities.
We saw people held for little or no reason, without regard to whether or not they would return to court.
That's where discretion got us.
You have to keep in mind, as a lay person, you may think that judges are the best and brightest at the legal profession has to offer.
That is not the case.
34% of judges in New York City are not even attorneys.
>> Usually referring to local town judges.
This isn't necessarily people serving on the state Court of Appeals.
>> State Court of Appeals, you have to be a lawyer.
Town and village courts... >> You can't be a prosecutor.
>> It's a commentary on the current state Senate because there are prosecutors who serve on the Court of Appeals.
>> Most judges come from a prosecutorial background.
If they have criminal law experience at all.
It is rare.
There are encouraging trends towards diversifying the bench in terms of the jurists but 34% of all judges in New York State are not lawyers.
And the town and Justice Courts, 76% are non-lawyers.
If you are arraigned, your first court appearances going to be in one of those types of courts.
It's either a town or Justice Court or city court.
76% of the judges on the bench are not attorneys.
So it's of tremendous concern that these judges have discretion when they don't have the background.
And that's what has led to racial disparities, led to people being incarcerated unnecessarily understand having their lives unwind while they're in custody.
So discretion sounds great.
But we can talk about who that discretion is going to, and if you want to know a little bit about this, the Chief Justice of the New York City Court of Appeals.
>> The previous Chief Justice.
>> No friend to the accused mind you.
>> Former Westchester County prosecutor.
>> A prosecutor who ascended to the beach.
She commissioned a study that was done by the former head of the Department of Homeland security.
And that person, Jay Johnson found that not only three quarters of town and village justices were not attorneys but the litigants in the courts had been subjected to racial bigotry so explit it, it seems to come from some other place and time.
And that New York requires more schooling and licensed manicurists and hair stylist than it does for town and village justices.
That's who is making the bail decisions.
So when we talk about should judges have more or less discretion, we are talking about whether or not that collection of folks with those backgrounds should have more or less discretion.
And they're primarily older white men, making decisions, very often, about younger black males.
And we all know what happens when older white men make decisions about the lives of younger black males.
Where has that gotten us historically.
>> Those are competing and different views what the system was like prior to the adoption of 2020 reforms that took effect in 2020.
So D.A.
Fitzpatrick, what was your experience in courtrooms once the changes that were pushed through in 2019 took effect?
>> Just, to piggy back on what erik said, keep in mind, first of all I agree with what he said.
I think anybody who sits as a judge anywhere in the State of New York should be an attorney.
That is not a very popular opinion with a lot of people who are local town and village court judges.
I believe in a district court system and I have been advocating that for many years in Onondaga County.
Second thing I want to point out is that any decision made by a local town or village judge regarding bail is immediately appealable to a Superior Court judge.
Very frequently we would see scenarios that erik described where somebody sets $500 bail on a shoplifter.
What is the pointed of that?
And the shoplifter is an indigent kid from the city who may be a person of color.
What is the point?
>> It might as well be 5,000, 5 million.
Doesn't make a difference.
My office would have a process where we would review those and, even without defense lawyer input, we would take that to a Superior Court judge and get the individual released.
But let's talk about New York pre-2019.
I call it the New York Mir miracle.
In 1992, six people a day are being murdered on the streets of the City of New York.
That's an incredible statistic.
In less than 20 years, that figure is now less than one a day.
And how did that happen?
Is it just-- was it because of, you know, some fairy dust or Twinkie, you know, some magic wand?
No.
It was smart, good prosecution, good policing and allowing judges discretion in some cases.
>> The economy might have helped, too?
>> The poverty rate during that period I just mentioned in New York City went up.
So we have this myth that poverty causes, you know, violent crime.
I think that's an insult to a lot of poor people.
But in addition to what I just mentioned, the prison population in the State of New York went down 60%.
The crime rate went down 70%.
And who started the diversionary programs to avoid the antiquated Rockefeller drug laws?
Not progressives in Albany, but prosecutors.
Not judges.
Not legislators, not the defense bar.
It was prosecutors that started diverting people.
>> But not for lack of trying in the state Capitol, it speaks to the politics in the state Capitol.
>> I would be happy to discuss the politics.
That's another show.
>> I'm sure Democrats in the Assembly were pushing for progressive changes and they're just getting stymied by Republican controlled state Senate and Republican governor at that time, from 95-2006.
>> You are suggesting that Shelly silver was pushing for tort reform.
>> I'm trying to get to the 2020 changes.
We only have 50 minutes.
Let's go it to the 2020.
What was the effect you saw in the courtroom?
>> The immediate effect we saw was, no the necessarily the bail situation, but the lack of the ability to make a corporiaal.
>> What do you mean by that.
You have a riot going on, 250 people in the City of Syracuse in front of a bar.
Before bail reform, you police would show up and people don't disburse.
They throw things.
The police begin to arrest people, physically arrest them.
Put them in a police van, take them down and book them at the public safety building and they would be held overnight.
Now, you have to hand people appearance tickets.
And you have a continuation of the riot.
That's unacceptable.
That is an unintended consequence of the bail situation.
I also saw in instances where recidivists would be let go, whereas pre-bail reform, a judge would say, okay, young man, object-- obviously you are not listening to my instructions.
This is your third shoplifting arrest in the last week and a half so I'm going to place some bail restrictions on you.
So there is a lot of data out there now that there wasn't available to me in 2019.
I know Josh has covered the data quite extensively and you can make arguments back and forth about it's led to, you know, increase in crime.
Something is causing an increase in in the State of New York.
I would suggest it's the triad of these reforms: Raise the age, discovery and bail reform.
>> Josh, you got teed up there.
What has been your experience when you look through the available state data that takes a look at the public safety picture in New York prior to the implementation of the bail laws in 2020 and in the, you know, months and, I guess years, to a certain extent afterwards.
What sort of picture emerges when it comes to public safety whether it's rearrest and as well the issue of returning to court?
>> Sure.
When the state passed these reforms in 2019, which was when the Senate flipped to a super majority Democrats and that was-- there was a change as well in terms of what the desire was to change the picture in New York.
But it was also a political change and a desire to finally see a difference in terms of criminal justice.
When they passed those laws, they included data collection.
And the data took a little while to come out.
I believe a year before we saw the results of what the court and the criminal justice agency could provide.
And what you saw was a muddle the picture and speaks to what we will probably get to here, which is, well, was it the pandemic that caused the increase in crime?
Was it the economy?
Was it the reforms?
Democrats quickly pointed to the fact that crime went up across the country.
So why are we blaming our reforms that we passed?
Republicans quickly point to well, this did happen here, so let's look at what we did change.
And ultimately what you see in the data is that for certain alleged offenses, there was an increase in recidivism.
Is that a byproduct of the state's bail laws?
You can make different arguments for it.
But for certain types of offenses, there were some bumps up in it and for some of them, in particular, there was a significant increase in failure to return to court.
>> In your experience, as you examine this issue from a statewide perspective and try to gauge, not just what is happening but why things are happening the way they are?
>> I think the biggest thing, picking up on the point about recidivism is when we talk about bail reform, I think we don't focus enough on the fact that pretrial detention leads to recidivism.
There is study after study that demonstrates that detaining people before trial is not a public safety gain overall.
We have long-term negative public safety impacts from detaining people before trial.
So I applaud the fact that the reforms included more data collection.
I think we need to do a lot more data analysis.
Trying to figure out what causes crime to go down, or what, you know, led to this example of recidivism or that is really complicated so the more data that we have, the better.
But I don't-- I think it's been very hard to sort of dig through pretty fraught political conversation and actually get to the real facts and try to analyze what is actually going on.
>> Can you impact-- unpack this idea that by not holding people, who have been charged with a crime, that you are actually going to reduce their future chance of committing another crime?
What is it about letting someone out without bail, you know, essentially making sure they're not held behind bars, having their lives disrupted will potentially resulted in them not committing another crime?
>> There are a lotted of studies that say two or three days of pretrial incarceration has significant downstream consequences for people.
It has impacts on people who have jobs.
Their potential to keep a job during that pretrial period is affected if they can't show up for work, even if just for a few days.
Certainly has impacts on their families, their communities.
With respect to their own criminal cases, people who are detained before trial plead guilty more often than other people who are similarly situated.
People who are detained before trial are more likely to be convicted in the long-term.
They get longer sentences.
I'm sure erik can speak more than that.
But pretrial detention makes it harder for attorneys to work with clients to build a case.
That's one of the reasons people think it has those impacts.
We know pretrial detention has all of those costs, and so you know, those play out in ways that I think undermine public safety.
So it isn't a pure liberty, security kind of argument.
There is a fair amount of ground we can gain for public safety across the board by reforming what we have been doing.
>> Erik, what has been your experience in courtrooms in 2020 and on, including in the face of tweaking to the state's bail laws multiple times since then?
>> The discovery reforms and the bail reforms, I think, are something that New York should be very proud of.
Discovery reforms leveled the playing field.
So if you are upset with the reforms, then you are upset with both sides having equal access to the information in a case.
There is no good reason why someone who is accused shouldn't have all of the information that the police collected.
That had not been the case in New York until 2020.
That was a significant reform.
New York State was behind the rest of the country when it came to discovery.
>> And just to interject, we could probably do a full day of debate about evidentiary discovery laws and implementation of those.
But unfortunately, we have to stick to bail for the most part.
I assume you were going back there.
>> I definitely am.
And the other reform, which can be considered a companion reform is the reform of the bail laws we have been discussing.
Both of those serve to give us, I think, a more just, fair system.
A consequence of being in custody, it's always easy to say, well, that person over there, which is usually someone that I don't share the life experience of, that doesn't look like me, probably a different age, gender, ethnicity and probably race.
It's easy to say let's keep them in jail for caution.
It's easy but it's not smart because when you are in custody, your life unravels like Lauryn began to tell us.
If you can imagine for a moment what it would be like if I said I'll be back in a minute and I called the police and they came in and took you away.
And by the way, that's all it takes in New York State.
You would be separated immediately from your cell phone.
Imagine the panic that's going to start to set in there.
You would go to the jail.
And you would be booked and photographed.
Fingerprinted.
Imagine the panic that sets in there.
Digitized information.
Is that ever going to be unavailable?
You might miss a medical appointment and you might miss school, you might mitt work.
You might not be able to pay your bills.
You might not pick your child up from school.
Mr. Fitzpatrick made a good point that a town and village court justice, likely a non-lawyer who sets a bail that the defense attorney considers to be unreasonable, does have recourse and can go downtown to a Superior Court judge and ask that that be looked at.
But that can take days.
And during those days, the life of the person in custody unravels.
And you emerge from jail, if you do, because people that have bail set on them, usually don't post that bail and do remain in custody.
So if you want to think of this as well, too bad for the person, they shouldn't have gotten themselves arrest.
Look at it from the perspective of the teacher.
Who what do I do with the kid who missed a week.
Or the employer who has to fill the job or the landlord who has to deal with the belongings and get the apartment.
The neighbors, the doctors, all of that, the impact of having a person plucked out of society and put in a cage is significant and widespread.
So that person now, having had their life disrupted.
If I was in jail for three or four days, I could rebuild.
My clients cannot rebuild.
They have had to struggle and descrap and claw to get what they have.
Advantages in custody for a couple of days, you emerge from custody, let's say it's only two or three days, but it rarely is.
And now you have to rebuild.
So a shortcut to prosperity presents itself.
In other words, I'll run afoul of the law to get something I need.
Nowly sell drugs that my friend has in order to get the money because I don't have the job, I don't have the apartment.
I don't have my kidney more.
So who cares about that.
It leads to crime.
So recidivism goes up because desperation goes up.
People have to rebuild.
It's not terribly difficult to understand, if you just take a breath and think about it.
>> You are talking about landscape that was supposed to be eliminated by the 2019 reforms.
So has that been your experience?
Has that been eliminated?
Has it been the case as D.A.
Fitzpatrick described where people are getting appearance tickets, people are getting the least restrictive conditions for returning to court or are you finding that people still are having to be held behind bars prior to their first court appearance.
>> Judges have less discretion than they did before.
If were you charge withed a misdemeanor, the just come has to release you.
You are fingerprinted, get an attorney, if you don't show up for court, the scud situation could change.
You have commitments to the criminal justice system and the determination about whether or not you are responsible for the crime still has yet to be made.
It doesn't mean punishment may not ensue.
We represent people that by definition are legally eligible for court appointed counsel.
We see hundreds and thousands of clients who now get to return to their families, jobs and schools and make their medical appointments that would have been in custody prior to the reforms.
But that doesn't make for a nice soundbite.
Joe blow went home and picked up his kid from school and went back to work and maintained his apartment, then returned to court and the case went on and was resolved however it would have been.
It's much easier to talk about the very rare circumstance where Joe blow gets released and Joe blow does something wrong.
Makes for a nice soundbite but there are a million success stories that are not sound soundbite worthy and we have attorney-client confidentiality concerns that we can't advertise these things except in the abstract.
>> I want to talk about the statewide perspective of that picture.
DA Fitzpatrick, what is your experience with people who are not being arrested for, say a bill eligible crime and having judges then impose a bail for these people who are seeing the least restrictive conditions historically being applied, whether that's some sort of monitoring or just released on their own reconnaissance, what is your experience with those cases?
>> The least restrictive means my understanding, has been removed with the recent-- >> All right.
Prior to that.
The last three years.
>> Let me give you a perfect example.
Victoria, a young woman 23 years old, high school graduate, some college, athlete in high school.
Popular with friends.
She has just been arrested for her fifth individual felony, fifth one.
The assistant DA at arraignment asks the judge, judge, she is now eligible for bail to be set.
She has four non-bail eligible felonies pending, but in the fifth one, in addition to a misdemeanor pending, she has hurt someone.
So under a very obscure provision of bail law, we can ask for bail.
This woman is crying out for some type of assistance.
And I don't agree that people are put in cages.
They're put in cells.
They have opportunities to get drug treatment, mental health treatment.
They have opportunity to educate themselves.
This young woman was given none of those opportunities, released back into society by a dismissive judge who simply said, I'm going for the least restrictive means possible.
And a week later she tortured a 93-year-old woman to death to get her pin number and is now serving a life sentence.
So congratulations to everybody, because that's one side of it that has not been brought up.
I believe the trauma of being fingerprinted.
It diminished the trauma when they have been fingerprinted five times in six months.
>> You think that's an anecdotal or representative of larger trends you are seeing?
>> I think it's representative.
I have heard that criticism it's anecdotal and isolated incident.
It's not.
See, the problem with a lot of the data that Josh has comarn examined and not the problem with Josh...
I have just gotten to know him.
>> There is a web extra we are going to do.
>> The problem you have is, the majority of crimes go unsolved.
If you commit a murder in the United States of America, you have a 50% chance of completely getting away with it.
Not getting acquitted just never beg arrested.
>> Good to know.
>> In addition, my phone goes off every night when there's a shooting in the City of Syracuse.
I sometimes turn it off because I can't get to sleep.
Three or four a night and no arrests commensurate with those.
And another thing that's important to point out is that you take a good attorney like erik and you put him with a competent prosecutor, 90% of the time they're going to agree on conditions of release of the client.
I hope that's true in Monroe County.
It is certainly true here.
So we are talking about a small percentage of the population that the legislators missed, the criminal population, when they drafted these laws.
Can you imagine being an engineer building a plane and not talking to pilots?
Do you know that no prosecutor group was consulted in passing these laws?
I find it fascinating that here we are in a panel of four good people talking about bail reform and apparently not one local legislator was willing to come to CNY and discuss... >> That is not the case.
We tried to invite people from more of a statewide perspective.
That's my state bias.
>> Sinally I thought some were invited and declined to appear.
I guess I'll wrong.
>> Josh, you came.
You made the trip from Albany, two hours.
Appreciate it.
What can we hear from you.
>> I want to get to one point that erik was mentioning about.
The stories you hear.
And I think that's an important piece of it because the conversation around bail is a lot of the conversation around how the media interprets it and how it's digested out, whether it's what you need in the front of a tabloid in your local paper, you see on the nightly news.
That's how the general public often understands the bail reform debate.
And I know, from the press side of things, often times when you ask public defenders, you ask groups, do you have any success stories that we can share about this?
And they say well, no one wants to be the poster child of they were arrested and released and are trying to get on with their life.
And so I think that that-- it poses a really challenging issue for the reporting mechanism of it as opposed to person arrested , police and DA come out, press conference next day and they're giving a very accessible understanding of that news story for the day.
To do a story about someone's journey and how they got to keep their job and keep custody of their child, et cetera that's a longer project.
That's not a daily type of story.
>> Longer attention span for it, too, which is a problem.
>> And newsrooms have limited resources and it's like a challenging element to the el-- to the telling of the story.
I don't think it's a lack of desire to tell the story but the mechanism makes it challenging to get it out.
>> Every year my office gives an award to someone who has gone through drug rehab and has successfully completed it.
That's a very simple story to cover.
And yet we got no coverage of it at all.
>> I can't speak to that.
>> David Suarez, if he does one, I'm sure will you cover it.
>> I wanted to touch on drug court and alternative courts, treatment courts, which in 2000, chief judge Judith Kay commissioned a study to understand, with the ballooning pretrial population in the jails, how can we find a different way.
>> I was on that commission.
>> And the commission found that we should lean on this instead.
It's a way to treat potential recidivism.
It can lower recidivism, help people get the treatment they need for underlying causes.
And it's reading that report today that was 23 years ago, it's uncanny to see how much of the language is the exact type of language that we are debating today.
Recidivism, drug issues, mental health issues.
And one thing we have seen from the data, for what it's worth, is that the use of drug court, mebility court have plummeted over the last two and a half years and some of the changes the state did in the past budget cycle, when altering the bail statute, was to attempt to connect folks with drug court, other types of treatment courts at that pretrial moment.
Some folks say that's too coercive and coercive treatment is not successful treatment.
It's not sticky, it's not useful and there is an argument for that.
And there is also access and bail to non-monetary conditions.
They have robust non-profits under funded intended to connect with you with a social worker and open you up to treatment you may need.
And Upstate more often than not, it's an ankle mob tore.
And that's not necessarily the intent of what the legislature was trying to do in saying we are not going to send you to jail.
We want to connect with you those resources of drug treatment or social services and we are going to do it outside of the bars.
>> I wish your article on that had gotten more publicity than it did.
>> I believe he came on the Capitol press room to discuss it though.
Had a long conversation.
>> I don't get CNY...
I do, David.
>> We need to find a new DA?
>> Seriously, that is an unintended consequence of what has happened.
See, when these reforms were first proposed, when I would advocate with my local legislators about the deficiencies in them, I with is told we are going to model New Jersey.
We are going to model New Jersey.
Okay.
Why don't we?
New Jersey imposed a very, very robust mental health drug treatment job training program along with their bail reforms.
New York promised that.
Hasn't delivered.
There are no programs out there.
Young man gets arrested is crying out for help, he is released on his own reconnaissance.
There is no programs for him develop willed locally and I'm sure it's the same in Monroe, erik.
If you want to copy New Jersey, let's copy New Jersey.
>> Let's fast forward to the recent state budget process, which was led by Governor Hochul and her desire to revisit bail for, I think the third time since 2019, the second time on her watch.
What were the changes that she was looking to get to the state's pretrial detention laws and what did she ultimately succeed in getting about a month late in the budget process?
>> The governor's team, from what they internally want, is to try to have more of a scaffold approach to address what they see from the data and what they're hearing whether it be from prosecutors or public defenders of issues happening in the bail laws and so they wanted to provide what they call more discretion to judges on bail qualifying offenses, on crimes that the governor calls serious.
It's the alleged offenses that the legislature said judges, you can still set bail in these cases.
You can still remand an individual, send them to jail pretrial because we think these offenses are serious enough that we are going to leave these alone, they're not a misdemeanor.
They're not the core of the intent of what we are changing.
And there is a different standard a judge is considering a set of the least restrictive means they'll ensure to court.
We are going to see what is necessary to get that person to return to court and there will be a list of variables that we are supposed to easily access.
To say, well, does this person have a history of gun possession.
Does this person have a history of not returning to court?
Do they have a domestic violence type of issue, things that the governor's office would say these are what people are saying prosecutors are saying when they're talking about we want dangerousness.
These are actual items of what people would define as dangerousness while not saying are you dangerous by your skin color or ethnicity or race: That has the argument for it public defenders probably don't buy that argument too much and say that this was a broad overreach.
They're rolling back the reforms.
And this is going to incarcerate more people and lead to more crime because the recidivism will go up because people accused of low level offenses will end up in jail pretrial and so that was their main attempt.
There are other pieces, some of it involving drug court, some of it involving non-monetary release.
>> Well, erik, certain DAs have described the changes as cosmetic in nature.
Do you think the changes adopted in the state budget are minimal, really just around the margins and are not going to impact the ability of New Yorkers to remain free after being charged with a crime?
>> This could be considered a tweak.
I would call it a tweak to the bail laws.
It's certainly not-- from the perspective of a defense attorney, it could have been worse.
But putting more discretion in the hands of the folks that I just described scares me.
The situation that we are going to be in now, used to be the judge, would be until June 2, as a result of the 2020 reforms, bail is designed to make sure this person who comes into me for their first court date is going to come back for the second court date.
That's the purpose of bail.
Everybody eventually is going to get out of jail except for small sliver of society who gets life sentences so everybody eventually is going to have an opportunity if they're so inclined to commit a crime.
You have to really take that out of it and look at whether or not this person is coming back or not.
And you have to engage in an analysis-- and there have always been various factors courts are supposed to consider and that has shifted around recently.
What is it going to take to make sure this person comes back?
And the reforms put in place in 2020 require judges to do what it takes to get people to come back, meeting the goal that New York State has set but not do more.
Now, come June 2, a judge could say, well, this person, they don't miss court.
Haven't missed court in the past.
Or this is their first case and they've got no track record.
And if the question was posed to the prosecutor, the judge give me something, give me a reason the person won't come back, the prosecutor would probably stammer and couldn't offer a reason.
And the judge couldn't offer a reason why they wouldn't come back so the person should be released on their own reconnaissance.
But come June 2, there is no good argument that this person is not going to come back, nothing to suggest this person is no the going to come back in two weeks.
I'm going to set bail anyway.
I'm going to put them on an ankle bracelet.
Release them to pretrial services.
>> What do you think is going to be the impact of these changes to the landscape?
Is there any reason to expect one outcome or another or are we heading into the great unknown with these latest changes?
>> I like the example erik teed up because that's exactly the problem.
You can't get rid of the least restrictive means standard.
I think there are strong arguments it's constitutionally required in federal cases and State Supreme Court cases across the country.
They have said that people's fundamental right to liberty can't be stripped away without that level of a showing of state needs.
So the idea that we could just sort of erase that out of the calculation is, I think, should be problematic to everybody.
So I think there are real questions about whether whatever the guidance is now-- and I can't support the idea that remove-- that we are moving toward a system that is even harder to understand what is supposed to guide judicial discretion in this space.
I think that's a real step back.
>> One thing to add is that some of the progressive lawmakers in Albany have hinted that there will be legal challenges to this change and public defender groups have also said that, at least on a case by case, when they find something egregious, they may challenge that and if they're able to find standing to kind of challenge it more broadly, we could see whatever the changes were kind of undone as it plays out over time.
So that will be an interesting piece to it.
One thing that erik mentioned, I think the intent of the governor, partly is to say, on those qualifying offenses, when judges were setting particularly high bail now and I think we know from the data the average amount of bail has actually gone up, with being able to set non-monetary conditions in addition to bail, which is a new change, judges may be inclined to say, okay, I'm going to set a lower bail because I know if you make this bail, you are not effectively released on your own reconnaissance but you are going to be partnered up with services or released into a drug treatment program.
Those things are differences that are intended to make.
Whether judges hear that and whether there is training that will lead them to implement those changes, I guess we will see.
>> One of the problems, Josh, I'm releasing you to a drug treatment program and when you don't show up there is nothing I can do about it.
>> I think they manicure some changes in terms... >> It's a non-bail eligible offense and the judge is saying as a condition of release entser a drug treatment program.
It's like the serial shoplifter who looks at the judge and says I know this is my 16th arrest, I have to get a suit from my next court appearance from destiny awfs... >> The person who does that... that person who does that to a court, first of all, that might not be enough for the court to send out for them.
But that person presumably is not going to make the next court date out of fear they're going to be taken into custody.
That's going to bolster an argument that a warrant should be issued and going to cost them down the road because judges can be vindictive and if you do something they feel is a breach of their trust or not taking advantage of the opportunity that they so magnanimously give you in there I view, it will make a difference in how the judge views evidence through the trial.
So there is a downside to people not taking advantage of some treatment opportunities.
And I will be the first to say that my clients historically, who have been given opportunities, I would say compelled to attempt treatment, some walk right out the back door in the first day and others have tremendous success and their lives are turned around.
So it's one of those things where have you to keep trying because it does work in certain situations.
The compulsory aspect of it is, you know, is troubling to me because a lot of these programs, they'll offer you the program as an alternative to jail.
And most people will do anything when it's an alternative to jail.
So you don't know whether or not the person is pleading guilty which is often a requirement to get into the program because they're guilty or because they're scared.
Which is why bail reform is a great idea and we want less people in custody because we want to be able to trust in New York State that when someone has a criminal conviction, 90 plus% of the cases in New York are resolved with pleas, negotiated settlements between the defense and the government.
We want to be able to look at someone's record in New York City and have confidence that that person had all of the discovery they were supposed to have, that they weren't pressured into taking the plea.
People in jail plea guilty to get out of jail.
So you never know whether or not they're actually criminally responsible for what they're accused of or not.
All you know is they plead guilty.
Bail reform and discovery reform work in tandem, over time to give us more confidence that a conviction was justed.
>> But a change on that, over the last couple of years in New York City where a lot of the media focus has been on whether or not bail reform has been successful is that on misdemeanors, criminal misdemeanors, the conviction rate or the plea rate has plummeted.
It went from maybe 50% pleas, 50% dismissals to 75% dismissal, 25% plea.
Some of that is a byproduct of discovery and speedy trials.
Some of that is a byproduct of people not pleaing because they're not being held in Rikers pretrial.
I think there is an element that both of those elements of both of what you are saying pan out.
That there are people who are pleaing and not, they knew they could have won the base bought they didn't want to wait in Rikers and there are people pleaing now because the defense may have been able to kind of sit on the clock a little bit and... >> Josh, in addition to what you are saying, I don't know if you calculated the number of dismissals as a result-- and I don't mean to delve into discovery but the number of dismissals.
>> I'll allow it once.
>> You allow him three times.
There is a reason prosecutors are leaving offices all over the state.
With the discovery law, a lot of misdemeanor cases are being dismissed.
In addition to a huge amount that are not even being reported.
I mean I don't know if you ever tried to buy a razor or shaving cream, you haven't bought shaving cream in a while Josh.
>> We'll talk about that.
>> It used to take five minutes and now it takes 30 minutes if you are lucky enough to find somebody with a key.
It's not because of COVID.
People are not worried about germs on the shaving cans.
They're worried about shoplifters.
I have a guy in our local lockup, from Jamesville plead guilty after his 28th petty larceny.
28th.
Inconceivable.
It's not a mystery.
27 of the crimes were on videotape.
He didn't plead guilty because he wanted to get out of jail.
He was already out of jail.
And he is doing-- so he got 27 free shoplifting charges at destiny, Walgreen's, DeWitt Wegmans.
I mean I could go on and on.
This is not a way for a civilized society to run.
>> And I should say that I think that often what I've found when trying to step back and listen to a debate on both sides of this table is that the concern that the public raises and the concerns that politicians raise, often on the issue of bail, are in two camps.
It's one on theft, on these petty crimes.
And how it impacts your day to day, especially when you are going to try to, you know, like me, I go to the CVS and I see like which tooth paste do I want today and you are looking at it and you can't necessarily pick up the thing of tooth paste and compare.
>> Exactly.
You don't know what color it is... >> Those are quality of life changes, right, that people feel in their everyday.
Are they like significant changes to how safe you feel?
Probably not.
But they are changes to everyday life.
And the other camp I just want to say is that there is violent crime, right?
And those are the tabloid front pages.
Those are the reports that go viral on social media that lead TV news and those are the ones that are real heart breakers and even the governor has said those are the ones she is looking to kind of tamper down.
So there are two buckets when you want to debate bail, about are the changes intended to resolve petty crime, quality of life crimes or intended to change how the judges look at violent crime.
And this year's changes were around violent crime.
>> Another part of the debate in Albany around changing the bail laws, an argument made by state lawmakers, Democrats, was this idea that judges don't have any idea how to exercise and implement the state laws on pretrial detention.
Lauryn, do you think that's a misleading argument?
Do you think judges understand what are their opportunities, what is up to their discretion and what is not up to their discretion, or is that a misleading argument to distract from the changes the governor babted at the time?
>> Yeah, I don't know.
I do think with the background where we have had a long history of judges making pretrial decisions based on criteria beyond what the statutes permitted them to do.
I'm sure judges had some sense they were acting beyond their authority all of those years.
I don't know.
I think one of the things with the idea-- I guess I sort of want to loop back to this because I feel like it keeps coming up.
>> Loop away.
>> There is a lot of appeal to the idea that we could predict who would be dangerous.
So if we want to start talking about the violent offenders, there is so much appeal to that.
If I could devise a system where I could actually tell you which of these 10 people was actually on release going to commit a violent crime, from might be a fair amount of consensus around the idea that we would maybe have to detain that person if we could not find another way to manage the risk.
The problem in these conversations is that we are very bad at predicting that.
We are good after the fact at looking back at an elk anecdotal situations where we can see a choice that was made and the consequence of that choice, but in advance trying to predict who is going to be violent on release, we are not very good at it.
Judges are, you know, like most other humans, flawed in their efforts to try to predict that kind of risk.
We now see jurisdictions around the country that use risk assessment tools to try to improve decision making in that context.
Those tools are also flawed.
I think some of those tools for predicting violence at their best are able to predict maybe one in 10 level of predictions.
So I think that's one of the-- I hope we will continue talking about that because I think that's a really hard part of this bail conversation that, you know, the latest round of reforms doesn't seem to engage directly with that.
We now are suggesting to judges that they can include criteria that we won't be explicit about.
>> If one is arrested on his fourth gun charge, you don't have to be nostradamu to figure out there might be a fifth in the near if you the.
>> What do you think about that?
>> I don't know that how well we do with predicting.
It may vary crime to crime.
People talk about minority report all the time in the space, especially when we are talking about using risk assessment tools because there is a lot of appeal to the idea that we could rely on science to help improve our decision making.
And eye-- >> A.I.
in the future we won't have judges set bail.
>> It's around the country.
These tools algorithms people don't understand the inputs and they are relying on them in some jurisdictions to help judges make better decisions.
But I think trying to actually figure out what we are talking about, how good we are at predicting things, what we should do with what we predict, those are the harder questions.
I feel like a lot of the political debate stays on the is you are as if.
And it's time for us to get into the weeds, right?
There is actually hard things to fix here?
>> Having meaningful debate amongst politicians breaking news we will have to explore later on.
>> But consensus building on when there is a clear data point that show what is happening.
I mean I was just looking at the state's data before coming on and you look at failure to appear rates, if we get back to the intent of the conversation around bail, it's whether or not you are returning to court, right?
If you look at, in irkt in, where-- in New York City, where the issue is most acute typically, you look at larceny charges with a pending or prior offense on the desk appearance ticket arrest.
In let's say the last six months of data January-june 2022.
71% of the time-- 72% of the time person fails to show up to court.
Nearly three quarters of the time the person with the pending or prior offense charged with a larceny, charged with, you know, petty larceny, they don't know-- they don't show up to court.
The data is very clear.
There is going to be a resolving door.
But the conversation is saying, no, no, no.
Let's not focus on the data on that point.
The data is no the trustworthy there.
And then that's coming from kind of the left side of it.
The data is not trustworthy on that point.
And then on the right they say well, what about this?
We can't trust the data here and then left set no, you have to look at the data.
So I have become skeptical in the last couple of years that lawmakers are actually going to say, let's look at the data and let's make decisions and tweaks to our bail laws based on the data because when there is a point raised, the other side says the data is not trustworthy.
>> The other thing I would say on that is detention is not our only way to solve these problems.
Even if we can just sit at a table and say yeah, I see the same number that you are seeing and we need to figure out some other way to solve that problem, we are not left with detention as the only way to resolve that.
>> You did it.
AND UNFORTUNATELY, THAT'S ALL THE TIME WE HAVE TODAY.
MY THANKS TO ONONDAGA COUNTY DISTRICT BILL FITZPATRICK, MONROE COUNTY PUBLIC DEFENDER ERIK TEIFKE, SYRACUSE UNIVERSITY COLLEGE OF LAW PROFESSOR LAURYN GOULDIN AND TIMES UNION CAPITOL REPORTER JOSH SOLOMON.
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