Chief judge: Tweak bail law to give judges more say in some cases

ALBANY — New York’s chief judge on Wednesday urged lawmakers to amend the state’s new bail law to give judges, in limited circumstances, more authority to detain suspects in jail before trial.

Judge Janet DiFiore largely supported the controversial new bail law, which eliminated cash bail for about 90 percent of criminal cases. For too long, the state had an “overreliance on bail” which unfairly impacted minority and poor suspects and “did so little to improve public safety.”

But she said the new law went too far in not allowing a judge to look at whether a suspect posed a “credible risk” to others.

The goal of reform can’t be achieved “if judges are rendered powerless to devise the best securing orders for those very few individuals who have been shown to pose a credible risk of danger to an identifiable person or group of persons,” DiFiore said in her annual “State of the Judiciary” address, delivered at the Court of Appeals.

Typically, the state’s chief judges have had little luck swaying the agenda of state legislators or governors. But DiFiore’s comments were seen Wednesday as buttressing calls by Senate Majority Leader Andrea Stewart-Cousins (D-Yonkers) and Gov. Andrew M. Cuomo to give judges more say over detaining or monitoring suspects before trial.

They also support eliminating cash bail altogether, a proposal that somewhat models the federal court system. Cuomo, at an unrelated news conference, said: “If you take cash bail out of the system … you need judicial discretion.”

DiFiore delivered her remarks an hour before an array of public defenders, across the street at the State Capitol, urged the Democratic-controlled Legislature not to make any changes to a bail law that took effect just eight weeks earlier.

“I’m here to implore Governor Cuomo and lawmakers to take a step back,” Laurette Mulry, attorney-in-charge of the Legal Aid Society of Suffolk County, said. “Let’s give it time.”

Mulry said restricting the use of bail means “no longer would wealth and privilege be the predicate of whether someone went free before trial.” She said of the new law: “Our defense attorneys on the ground know it’s working.”

DiFiore suggested a risk assessment must be narrowly confined to an “identifiable person” rather than a wider “risk to the community.” The broader assessment is something some Republican lawmakers and law enforcement officials have proposed — but which has drawn strong condemnation from Democrats as potentially undermining the bail changes.

Republicans and some law enforcement officials have said the new law has resulted in too many dangerous criminals being released.

The chief judge said the political furor has “overlooked” the fact that “New York’s judges had already drastically cut back on the imposition of cash bail in recent years.”

According to DiFiore, the number of New York City cases in which bail was set declined from 48% in 1990 to 23% in 2018. Nationally, bail is set in about 50% of cases, she said.

 “This was a very conscious cultural change,” DiFiore said, “a change that grew out of access to increased data and a better understanding — and concern — about the injustice caused by reflexive bail practices.”

But severely limiting judicial discretion could prove “counterproductive” — unless lawmakers make adjustments, she said.

She asked them to amend the law to “recognize a narrow exception allowing judges — after a full and fair adversarial hearing — to detain a defendant in those few and extraordinary cases where such a credible threat exists.”

How narrowly such an exception is drawn could be key to whether the Democratic-led Assembly — which has been more liberal than the Senate on this issue — could accept any changes, state officials have said.