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Don’t let emotion dictate changes to state bail policy

This is about a 3 minute read.

In a Jan. 15 op-ed piece in the New York Times, Gov. Andrew Cuomo announced his intention to submit a bill to the state Legislature that will “close the gap between what our criminal justice system says it does and what it does.”

The bill calls for anyone facing a misdemeanor or nonviolent felony charge to be released without bail. Cuomo did not sugar coat his feeling that the current system unjustly penalizes the poor, who often cannot afford to post bail.

The main intent of bail is to guarantee the accused appear at all court proceedings following an arrest. The premise is that the accused would return for all court dates rather than forfeit their bail money.

In setting bail, state law allows judges to take into account not only “the degree of control or restriction that is necessary to secure (the accused’s) court attendance when required” but also the person’s character, mental condition, employment and financial resources, family ties and length of residence in the community, and previous criminal record, as well as the weight of the evidence against the accused, and the severity of the possible sentence (New York Criminal Procedure Law section 510.30-2a).

It seems there is sufficient direction for judges – who we elect to make decisions regarding bail – as the law currently exists. But the bill proposed by the governor would force judges to treat everyone accused of a misdemeanor or nonviolent felony the same.

This undermines, rather than promotes fairness. Say I am a 50-year-old accused of giving my neighbor a black eye (misdemeanor assault in the third degree, at the most). But I also have a history of similar misdemeanors and even nonviolent felonies, as well as skipping out on court dates. Should I be treated the same as an 18-year-old who shoplifted a six-pack of beer?

The governor cites the example of a 16-year-old who spent three years in jail awaiting trial. While this provokes strong emotions, we need to be cautious about letting our emotions, rather than evidence, guide our decisions.

Using highly emotional examples is a tactic long employed by politicians to sway public opinion. In the governor’s example, we feel sympathy for the young man that then leads to anger – dare I say outrage – that a free democratic society would treat any of its citizens like this.

But before we break out the protest signs, consider that there were around 300,000 misdemeanor arrests in New York state in 2016. The governor admits that “most people arrested in New York are released on their own recognizance,” which means without any requirement to post bail. One example, while tragic, is not indicative of a system that is completely broken.

By comparison, I can cite stories of those released on parole who raped and murdered within days or weeks. One such person shot and killed a former colleague of mine with the Rochester Police Department; he had only been out of prison a few weeks and was already wanted on a parole violation. But these instances are strictly anecdotal and not nearly enough to say that the entire parole system is broken.

We should always be examining our justice system to see what we can do better. However, I would suggest that the fact that most people who are arrested are released without being required to post bail is an indication that a system based on judges’ evaluations is working properly.

It should at least remind us not to be swayed by one emotional story, and to reach a conclusion based on available evidence. I implore the citizens of New York to do their own research and then reach their own conclusions.

About the Author

rmartin's picture

Dr. Martin is a former police supervisor with the Rochester Police Department. He is a career police practitioner who has served with smaller agencies (Newark, NY & Fredonia, NY Police Dept's) as well as with a larger urban department (Rochester, NY). During his career, he has served in many capacities including: patrol supervisor, crime scene technician, traffic accident reconstructionist, fire investigator, undercover narcotics officer, field training officer, police trainer, and police SCUBA diver. Dr. Martin is also a veteran of the Unites States Army having served with the 101st Airborne Division as an infantry rifle team leader during Desert Storm, and later with the Army Reserves as a drill sergeant and the National Guard as a section sergeant where he led a platoon during a Homeland Security deployment to New York City and the Ginna Nuclear Power Plant.  Dr. Martin has been teaching at the college level since 2007. He is a Keuka College alumna and was hired full time by Keuka College in 2011. He holds a Master of Science Degree in Criminal Justice from Boston University and a PhD in Organizational Leadership from Regent University. He has published multiple times in national law enforcement publications (Law and Order Magazine, the FBI Law Enforcement Bulletin, and the Law Enforcement Executive Forum) as well as presented at several regional, national, and international conferences.

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