“New York offers special challenges in achieving bail reform,” the Chief Judge said this last Tuesday. “In almost every other state, judges are required by statute to consider public safety when making a bail determination. In New York, they are not required, or even permitted, to do so. Because of this, defendants in New York are screened for their risk of failure to appear in court — using a range of factors such as ties to the community, criminal record and past failure to appear — but not for their risk of committing a new crime.”
As a result, he explained, defendants are put back on the street without regard to the public’s safety, which could lead to “catastrophic consequences” that do not serve the best interest of the city’s residents.
“The time has come to join 46 other states and the District of Columbia by changing New York’s bail laws to require judges to take into account public safety considerations,” the Judge continued.
He pressed that allowing the present situation to go on would be bad public policy at a time where we need to do everything possible to combat crime and violence.
Consequently, Lippman urged that the big picture is to make sure that pre-trail detention is reserved only for those defendants who cannot safely be released or who cannot be relied upon to return to court.
“We must do all we can to eliminate the risk that New Yorkers are incarcerated simply because they lack the financial means to make bail.”
Aside from being unjust, he said last week, incarcerating defendants simply because they can’t make minimum bail “strips our justice system of its credibility and distorts its operation.”
To avoid error, Judge Lippman said bail statutes must be reformed to make clear that, when defendants are charged with non-violent offenses, a statutory presumption must be set to guarantee they be released with the least restrictive conditions possible. In other words, nonviolent defendants who do not threaten public safety should not be kept in jail because they cannot afford bail. Under the current law, judges set bail only in an effort to ensure defendants return to court.
Lastly, he urged the city to ensure that judges have accurate information before they are asked to make critical decisions in regards to bail.
He said: “In some instances, primarily in rural parts of the state, judges do not always have the defendant’s criminal history record (the ‘rap sheet’) at the arraignment. This is not only contrary to law but it also defies common sense, and we need to do everything we can to rectify this problem.”