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Experts weigh pros & cons of bail reform

Jerry Gretzinger
Updated: December 12, 2019 08:52 PM
Created: December 12, 2019 04:33 PM

Starting Jan. 1, if you commit a non-violent crime, chances are you won't see the inside of a jail cell. The practice of judges setting bail for hundreds of misdemeanors and non-violent felonies will be a thing of the past.

It's about time, according to longtime Albany defense attorney Terry Kindlon who says the current bail system is unjust.

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"It's better to be guilty and rich than poor and innocent," Kindlon said.

Kindlon says right now you can have two people charged with the same crime and face the same bail amount.  Person "A" can afford it and returns home to his job and his family.  Person "B" can't afford it and sits in jail until the next court appearance. 

"Whether you can pay bail or can't pay bail, it doesn't change your character," Kindlon said.

He says bail exists to insure the accused returns to court, not to serve as a form of punishment, which he claims it has. He believes the reforms will fix that.

"And there's not that much to worry about. It's not that big a deal," Kindlon said.

But it is a big deal if you ask members of law enforcement.

"Just to say carte blanche everybody goes, I think…it's doing a disservice to our constituents," Albany County Sheriff Craig Apple said.

Apple agrees we need bail reform, but says it went too far.

About 400 misdemeanors and felonies will no longer be eligible for bail consideration. The accused will get an appearance ticket only.

Apple believes it does make sense for lesser crimes.

"I have no problem with them not seeing a day in jail. Assaults? Criminally negligent homicide? Manslaughter? Come on," the sheriff said.

The list also includes burglary of a residence, aggravated assault upon a person less than 11 years old, arson in the third degree, killing a police dog, and sex trafficking crimes. The accused will be trusted to return to court and stay out of trouble.

That's as it should be, according to Melanie Trimble of the New York Civil Liberties Union.

"There have been no consequences of any kind that we've seen in any other state, California, Massachusetts," Trimble said.

"The charges may sound violent or dangerous. These were all well thought out by our lawmakers," she said.

That may be, but there are differences between New York's plan and those where there have been no consequences, like California and New Jersey, which Gov. Cuomo's office has compared New York's bail reform to.

In a statement, spokesman Jason Conwall told us, "Republican Gov. Chris Christie passed essentially the same bail reform laws years ago."

The emphasis is on "essentially."

"The governor comparing this to New Jersey is not an apples-and-apples comparison. And that's true," Assemblyman John McDonald said.

McDonald was part of the justice reform debate during the budget process. He says some critical components of New Jersey's plan are missing from New York's.

"Actually has a risk assessment guideline to help identify whether an individual truly is a risk of flight of not reappearing or could be a danger to the community," he said.

That's part of the problem Saratoga County District Attorney Karen Heggen has -- the elimination of humanity and a judge's discretion.

"We are saying to them we don't trust you to make a determination. We're going to give you specific lists of cases. You're not going to rely on the unique facts and circumstances of a particular case as to whether bail should be set or not. You're just going to decide it whether or not it's on this list or it's not," Heggen said.

"I have never heard a prosecutor complain about the fact that mandatory minimum sentencing removes discretion from a judge," Kindlon said. "That's because the benefit flows in their direction."

While law enforcement has called for a delay in implementation, it does not seem likely. Folks like McDonald expect they'll address problems if and when they arise.

But as the debate continues, small police departments like Ballston Spa are trying to come to terms with a very different kind of law enforcement.

"Someone who shoplifts from a local store, we'll arrest him, then we’ll set him free?" Ballston Spa Police Chief David Bush wondered.

Bush says the mandated catch and release method could have them picking up the same people for the same crimes over and over again.  He worries about the message it'll give to victims.

"And this could go on and on and on. Where does it end?" Bush asked. "When do we say to that victim, that person, that victim of a crime, that we're sorry, we're doing what we can?"

The Queens District Attorney's Office compiled a list of those crimes for which bail no longer will be an option. Click here to see the list.

Friday Live at 6, Jerry Gretzinger investigates discovery reform. On Monday, Emily Burkhard will look at the cost of justice reform.


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