Judges need more leeway on bail

The latest Siena College poll reinforces a loud and clear message sent by New York State voters in November. Ninety-two percent said crime is a “very serious” or “somewhat serious” problem. And about 72% said they want judges to have more discretion in choosing the terms of a defendant's release pending trial.

Democratic Gov. Kathy Hochul is attempting to act on that message from diverse corners of the cities and suburbs. It is a hopeful sign that as the deadline approaches for a state budget, Democratic Assembly Speaker Carl Heastie appears to be trying to negotiate helpful change.

The few words at the core of the talks bind judges to using the “least restrictive” means of assuring a defendant’s return to court on the date assigned. Hochul’s argument, repeated since January, is that when combined with guidelines for specific felony and misdemeanor charges, the "least restrictive" language can confuse judges as to what their options are. She says judges can now consider parts of a defendant’s history when deciding whether to impose bail. This includes domestic violence or violating protection orders.

Amid debate over just what crime figures show, one part of a study from a John Jay College of Criminal Justice data project is especially notable. "For people charged with burglary in the second degree, pretrial release was associated with increased rates of felony rearrest," it says.

Earlier this month, in harmony with the District Attorneys Association of the State of New York, Suffolk D.A. Ray Tierney issued a letter encouraging Hochul to modify the 2019 bail restrictions. The goal is to exercise caution in handling alleged offenders who have the clear potential to commit potentially violent crimes pending trial. Tierney wrote that with past bail-reform talks, “the ultimate legislative result was an awkward juxtaposition.” Essentially, Tierney says that even as the state has specified violent crimes that are bail-eligible, a defendant's violence itself is barred as a factor in a judge's decision on release. Tierney rightly diagnoses the problem, while also seeking stronger changes. Unlike other states, New York lacks a "dangerousness standard" judges can apply.

Skeptical lawmakers note that the list of offenses eligible for cash bail has already been expanded. Their real fear seems to be that this would bring back over-incarceration. It would not. Long Island legislators of both parties should speak up on behalf of their concerned constituents and urge Heastie and Senate Majority Leader Andrea Stewart-Cousins to agree to the needed changes.

Hochul should keep pressing in negotiations and step up her argument that this change — of a few words — can better balance the rule of law with the rights of the accused. This is the moment for her to prod and wield leverage. Voters are demanding that better balance in the scales of justice.