Key Points from UCLM’s December 13th Bail Reform Community Discussion
Below are the key points from the invited speakers’ prepared remarks and their answers to attendees’ questions. Please note that some statements from one speaker do not align with statements by another.
Mike Green - Former Monroe County DA:
- Bail Reform passed because our system was historically not fair. If you have money, you get out of jail. If you are poor, you sit in jail. This contributes the racial disparities inherent in our system.
- NYS population is 15% black. 38% of general adults arrested are black. 45% of adults arrested for felonies arrests are black. 47% of people sentenced to prison are black.
- Monroe County is even worse. Population is 14% black, 53% of adults arrested are black. 59% of adults arrested for felonies are black. In 2020, 71% of people sentenced to prison were black.
- This racial disparity is caused by the structural inequality in our legal system and bail reform is one of those inequalities.
- NYS Bail Reform - people who are accused of non-violent, low-level crimes must be released without bail. More violent crimes, gun crimes - judges can still set bail.
- NYS bail reform law was amended twice. The 2nd time in 5/22 – allowed to consider someone’s history of gun use and possession when considering setting bail. This amounts to a dangerousness standard - although it is very specific - only to guns.
- The common belief is that crime is out of control.
- FBI crime data lumps crime into 7 categories (murder, rape, robbery, aggravated assault, burglary, larceny, motor vehicle theft) which are called index crimes.
- In NYS in 2019 - these crimes were at an all-time low. Increased 2% in 2020. And decreased slightly in 2021. In 2021 - the NYS crime rate was 24% lower than in 2012.
- In Monroe County - 2017 there were 19,000 index crimes. In 2021 - we were below 15,000 index crimes in the County.
- Crime is down. This includes the time when bail reform was enacted. In the city of Rochester - index crimes and violent crimes are also down as a whole.
- Murder, Aggravated Assault, Motor Vehicle theft are up. Rape, Robbery, Burglary, Larceny are all down in spite of bail reform. It makes no sense to say that bail reform is driving the spike in crime.
- Spikes in gun violence are occurring in the urban centers.
- Why is this happening? - Segregation, concentration of poverty, COVID, and also the pressures of George Floyd. COVID - impacted the police and also shut down the court systems.
- In Monroe County - 2019 - 500 people were sent to prison, In 2020 - 250. This decrease is due to the court system shutting down due to COVID.
- Also, COVID impacted all of the community anti violence groups - decreased people and decreased effectiveness.
- 2017, 2018, 2019 - NYS saw the lowest number of homicides and judges could not consider dangerousness at those times.
- Risk assessments for dangerousness all incorporate past history of criminal activity - this means these assessment are all infected by the past prejudices of the criminal justice system.
- Expanding the dangerous standard will just take these past prejudices and racial disparities and make things worse.
- An analysis by the Albany Times Union demonstrated that since NYS Bail Reform went into effect - about 80,000 people were spared jail time.
John Bradley - Public Defenders Office:
- Bail reform law passed 5/2019. Was not implemented until 1/2020.
- Was implemented to increase fairness because defendants are presumed innocent until proven guilty.
- Possible consequences of sitting in jail awaiting trial
o Can lose their home or job
o No income
o More likely to plead guilty. If you can’t make bail, your trial may be 7-8 months down the road - so you would rather take a plea deal, even if you are innocent.
- The number of people incarcerated is down but there are still too many people sitting in jail
- Bradley feels that judges still have too much discretion when setting bail, and can be horribly unfair to defendants.
Kristine Durante - Probation Office:
- Key concepts: Probation deals with post-conviction and bail deals with pre-conviction.
- Bail does effect probation in certain ways. Right now, there are about 400 people on probation in Monroe County for violent felony offenses. Of those 400, 15 (4%) were rearrested for another violent felony. The concern here is that those 15 people who were arrested, were released on bail. There is a tendency for these 15 folks to not show up for their trial.
- Very few people on probation go on to commit another violent felony.
Michael Patterson - Rochester City Council:
- Gun violence is epidemic. But he would not say that the uptick in gun violence is a direct result of bail reform. But he will say that in the 3 years (2017, 2018, 2019) in Rochester prior to bail reform, there were 500 shootings. In the 3 years since bail reform (2020, 2021, 2022) there have been 1,000 shootings.
- Neither he nor anyone on the City Council is opposed to Bail Reform. He IS advocating for a dangerousness standard for gun charges specifically aimed at individuals who are not authorized to possess a gun.
- Currently, a judge cannot consider the dangerousness of a person in a gun case in deciding whether or not to set bail. New York is one of the few states that does not have a dangerousness standard re. bail.
- The Federal System does have a dangerousness standard.
- Currently there are 40 people being held in the Monroe County jail without bail - charged with a federal crime and the dangerous standard was applied to not give them bail.
- An Example: A man was arrested and released 3 times on gun charges. 1st time - he shot up a house with mother and child inside. Was released without bail. 2nd time he shot 2 women - this time bail was set for $25,000 - he paid it and was released. 2 weeks later he was in another shoot out - bail set for $50,000 - he paid it and was released again.
Chief Catholdi - Brighton Police:
- Feels Bail Reform was rolled out very poorly.
- In January 2020, the Chiefs of Police got a list of 90 crimes (misdemeanors and felonies) that they were told e were non-violent crimes. Not too far down the list was “Criminally Negligent Homicide”!
- Six months after the law was released in Jan 2020, Criminally Negligent Homicide (and others) were removed.
- Bail Reform decriminalized a number of common offenses that police officers deal with on a daily basis.
- The roll out of Bail Reform had a negative impact on proactive policing - police used to stop and question suspicious people - potentially leading to a struggle with the suspect. The suspect is then released without bail, which left police confused about what police can and cannot do.
- Police were told they have to use the least restrictive means possible when dealing with the public.
- Some of this has changed. Still, Bail Reform removes some of the deterrent effect on criminals.
- The police are demoralized.
Question and Answer Session:
1. What domestic violence crimes are bail eligible? Domestic violence crimes are not defined specifically in the law. Some examples - assault in the 3rd degree - you hit someone - this is not bail eligible. Another example - violating an order of protection - this is bail eligible. More serious assaults - 2nd or 1st degree are also bail eligible. Some other crimes - choking, menacing - if they occur between domestic partners - they are bail eligible.
2. Common points of disinformations on both sides of the bail reform debate? If you are are charged with possession of a weapon - this is a bail eligible offense - this is TRUE. If you have a history of gun use or possession - this is now a dangerousness standard that is written into the NYS Bail Reform law - this is TRUE.
3. Is illegal gun possession a bail eligible crime? Gun crimes are bail eligible.
4. What are the pros and cons of having judges assess dangerousness? Is there a
balanced an unbiased tool to help here? There is no objective metric for determining dangerousness. Also dangerousness standard flys in the face off presumption of innocence. The dichotomy here is that you are presumed to be innocent until proven guilty, yet we still consider you dangerous. All of us have our own biases - this incudes judges. Letting then assess dangerousness just gives these biases free reign.
5. What is one system change needed to reduce gun violence? Need to strengthen our communities. Gun violence is concentrated in those areas where we have the greatest challenges - increased poverty, segregation, fewest services, fewest economic and educational opportunities. We cannot police our way out of the gun violence problem. The key here is to stop gun violence before it starts.
6. How to get back to proactive policing? There has generally been a mass exodus of police officers. In Monroe County - there will likely be a hiring crisis. Police are stretched - can’t adequately respond to service calls.
7. How often do people get arrested for new offenses while awaiting trial? Albany Times Union study about 12 mos ago - about 2% of the people released due to bail reform go on to commit a violent felony. Michael Patterson disagrees here - states the RPD routinely re- arrests people released without bail. Kristine Durante - states that the data show there is really only a small number of people that are re-arrested.
8. Judges role in releasing people without bail. Mike Green states that in all his years as a prosecutor, he routinely saw a revolving door of people getting arrested, released without bail and then get rearrested again. All this happened long before bail reform. There are different reasons why people are released without bail - maybe there is a problem with the evidence. You can’t just routinely blame the judges.