Morton A. Klein: New York's "Bail Reform" Makes Jews & Everyone Else Unsafe
New York's "Bail Reform" is Giving "Get Out of Jail Free" Cards to Alleged Hate Crime Perpetrators, Allowing Them to Attack Others
Case in point: the release, without bail, of Tiffany Harris — twice in three days — after Harris's initial arrest for an alleged unprovoked attack on a group of Jewish women in December. Her case exemplifies the flaws with New York's Bail Elimination Act (NY Criminal Procedure Law § 510.10 et seq.), which went into effect on January 1st.
Harris first made the news after she allegedly attacked three young Orthodox women in Crown Heights, Brooklyn on Friday morning, December 27. Harris reportedly confessed to the police officers who arrested her: "Yes, I slapped them. I cursed them out. I said 'F-U, Jews.'"
The day after her arrest, the Brooklyn Criminal Court released Harris without bail, reportedly under pressure to comply with the forthcoming New York Bail Elimination Act.
One day later — on Sunday, December 29 — Harris was again arrested – this time for allegedly attacking a woman who was walking with her 3-year-old son and baby daughter in Brooklyn. The victim was reportedly Jewish. Yet once again, the court released Harris the next day, without bail.
And once again, within a day Harris allegedly assaulted a social worker during a court-mandated meeting – Harris' third alleged crime in just five days. She was finally kept in custody for psychiatric evaluation.
Notably, Harris' alleged attacks occurred during a gruesome week in which Jews were attacked repeatedly in New York: between December 24 and January 1, there were 13 assaults on innocent Jews.
We cannot hope to stamp out the current plague of antisemitic attacks when attackers are immediately released back to the streets.
The flawed New York bail system was a risk to public safety even prior to the new Bail Elimination Act. The Vera Institute of Justice (a liberal group dedicated to eliminating cash bail) explained (emphasis added):
New York was, and remains, the only state in the country that precludes judges from taking into account any consideration of public safety when setting bail or imposing pretrial detention. Until the 1970s, all bail statutes only considered failure to appear. With the advent of "tough on crime" rhetoric and policies, several states began to amend their bail laws to include a consideration of risk to public safety. In 1984, Congress passed the Federal Bail Reform Act, which introduced public safety in the federal bail system and survived a constitutional challenge in United States v. Salerno. Since then, 49 states, all except New York, have changed their bail laws to allow judges to consider both risk of failure to appear and public safety in pretrial decisions.
New York's Bail Elimination Act exacerbated the prior risks in New York. The Vera institute calls New York's new provisions "transformative" because it reduces the traditional discretion of the courts.
These "transformative" new provisions include:
(1) Mandating that the police must simply issue an appearance ticket (a summons) to most people charged with misdemeanors and Class E felonies, some of which are violent felonies.
(2) Mandating release for a wide swath of offenses, and requiring judges to jump through hoops to impose restrictions on defendants. New CPL [Criminal Procedure Law] § 500.10.1 provides that (emphasis added): "In all such cases [where a future court appearance may be required], except where another type of securing order is shown to be required by law, the court shall release the principal [arrested person] pending trial on the principal's own recognizance, unless it is demonstrated and the court makes an individualized determination that the principal poses a risk of flight to avoid prosecution. If such a finding is made, the court must select the least restrictive alternative and condition or conditions that will reasonably assure the principal's return to court. The court shall explain its choice of release, release with conditions, bail or remand on the record or in writing."
New York's mandated release is unusually lenient. Every other state's bail reform law merely require courts to consider a "presumption" of release for most offenses.
(3) As noted above when a condition on release is imposed, the judge is required to impose the "least restrictive" conditions on release that will "reasonably assure" the arrested person's return to court. Further, the use of electronic monitoring is extremely limited. (See CPL § 500.10.3-a)
Imposing the "least restrictive" conditions that "reasonably assure" a return to court is far less protective of the public than the previous standard. New York law previously provided that "the court must consider the kind and degree of control or restriction that is necessary to secure his [the defendant's] court attendance." (Prior CPL § 510.30.2(a).)
In all likelihood, fewer defendants will show up at their court hearings under the new standard, which does not impose conditions "necessary" to secure court attendance.
(4) Requiring judges to consider a person's "ability to post bail without posing undue hardship, as well as his or her ability to obtain a secured, unsecured, or partially secured bond." (CPL § 510.30.) When bail is imposed, judges are also required to set at least three or more forms of bail, one of which must be an unsecured or partially secured bond. An "unsecured bond" only requires payment if and when someone fails to show up for court, and offers far less incentive to return to court than paying bail prior to the court date does.
The previous version of CPL § 510.30 already required courts to consider a defendant's "employment and financial resources." The law thus already addressed the "bail system favors the rich" argument.
The new "ability to pay without undue hardship" requirement invites manipulation of the system.
(5) When a defendant fails to appear for his court date, the new law now requires judges to give defendants a 48-hour grace period to voluntarily appear prior to issuing a bench warrant. (CPL § 510.50) This potentially leaves defendants who pose a risk to the public in the community even longer.
What are the solutions?
First, New York needs to reconsider its refusal to consider danger to the public when making bail determinations.
Properly crafted laws can take danger to the community into account in bail and bail denial determinations. In United States v. Salerno, 481 U.S. 739 (1987), the U.S. Supreme Court upheld taking into account in bail determinations the arrestee's dangerousness, for specific serious offenses where Congress found that arrestees were likely to repeat the offense if released, where the arrestees were provided with due process protections, including probable cause, and a full-blown adversary hearing.
Second, at a minimum, New York should amend its Bail Elimination Act so that the courts are not required to give mandatory desk tickets and mandatory release to the perpetrators of hate crimes. New York's new "capture and release" system fails to take the plague of antisemitic hate crimes seriously.
Third, we need to return to a system that sets bail at an amount "necessary to secure" defendants' return to court. The victims and potential future victims of antisemitic hate crimes deserve no less.
If the New York State legislature is sincere about stopping the antisemitic crime wave plague on New York's streets, the legislature must immediately fix this new flawed system.
Morton A. Klein is president of the Zionist Organization of America (ZOA. He was named one of the five most influential Jewish leaders by the Forward. Follow him @mortonaklein7 and ZOA.ORG.
Elizabeth Berney, Esq. contributed to this article. She is an attorney and graduate of Cornell and the University of Chicago Law School and is ZOA's Director of Special Projects.
