New York state Chief Judge Jonathan Lippman has once again decided to interject himself into the legislative process by proposing a major overhaul of the bail process for defendants awaiting trial. In his State of the Judiciary speech Tuesday, he said the current bail system is “unfair” and that jailing defendants before trial subjects them to “economic and psychological hardship.”
True to his progressive ideology, he proposes reforming the bail statutes to keep as many accused criminals out of jail as possible.
To that end, Lippman wants a statutory presumption that defendants charged with “nonviolent” offenses must be released with the least restrictive conditions possible unless the defendant poses a threat to public safety (the one silver lining to this cloud: Judges would finally be allowed to consider public safety when setting bail) or a legitimate risk of failure to appear in court. And he’d couple pretrial release with a monitoring program to give defendants access to social services and treatment programs.
But his reasoning’s rife with flaws.
In his preamble, Lippman spoke of New York’s record crime reduction, citing the contribution of alternatives to incarceration — while totally ignoring the critical role played by the increased and prolonged incarceration of violent felons, repeat felons and drug dealers. He’s so ideologically opposed to tough law enforcement that he can’t bring himself to admit the obvious.
Second, he fails to deal with the biggest flaw in the current bail system — namely, that it releases tens of thousands of defendants without bail, or on low bail, who fail to appear in court as required.
These bail jumpers (whom the courts judged to be lesser flight risks than the defendants Lippman sympathizes with) display disrespect for the courts and undermine the criminal-justice process. Yet he’s not calling for a drive to track down, rearrest and supervise these absconders. Instead, he’s intent on adding to their ranks — since that’s the inevitable result of releasing defendants who are even greater flight risks from pretrial detention.
Lippman says many defendants are held in pretrial detention “simply because they lack the financial means to make bail” — but that’s misleading demagoguery.
When setting bail, judges evaluate the nature and seriousness of the charges, the strength of the case, a defendant’s criminal history and record of appearing (or not appearing) in court as scheduled as well as his roots in the community. An indigent with no criminal history, charged with a low-level crime, is very unlikely to be detained. But an indigent with a long criminal history who regularly fails to appear in court is likely to have a bail set that will lead to his detention.
That’s exactly how the process should work.
Lippman engages in one of the favorite rhetorical tricks of liberal criminal-justice reformers: reclassifying “nonviolent” felonies as minor offenses and treating misdemeanors as trivial.
But nonviolent doesn’t mean minor: Under his proposal car thieves, cellphone snatchers, strong-arm robbers, many burglars, all drug dealers and even those accused of reckless manslaughter would be presumptively entitled to pretrial release.
Since most defendants are arraigned and bail is set within 24 hours of arrest, these accused felons would likely be back on the street long before a victim has his/her stolen cellphone or car returned.
Indeed, a major problem with presumptive release is that it ignores the interests and concerns of victims.
The chief judge also criticized the bail-bond industry, complaining that, because of its profit motive, bondsmen don’t write bonds for bails set at $1,000 or less. (To liberals, it’s profits — not felons — that are evil.) His “solution”? Lippman wants nonprofit groups to act as bail-bond agents.
Since many nonprofits receive significant funding from taxpayers, this means taxpayers would subsidize bail bonds, at least indirectly. Worse, it leaves defendants with no “skin in the game” — who’s going to worry about repaying a not-for-profit if he absconds?
The primary liberal objective when it comes to criminal justice is to keep as many convicted felons out of jail/prison as possible. Progressives recognize that releasing large numbers of “nonviolent” types from pretrial detention will encourage judges to impose non-jail and non-prison sentences. I can already hear defense attorneys proclaiming how the defendant is doing so well in a treatment program that it would be counterproductive to now sentence him to jail/prison.
That’s the inevitable next step liberals will take in their effort to reshape and undercut a criminal-justice system that has succeeded in bringing about a record decrease in crime.
Michael E. Bongiorno was Rockland County district attorney from 1995 to 2007.