ALBANY — Law enforcement officials from across the state are asking for a say in sweeping changes to the criminal justice system — known collectively as bail reform — set to kick in at the start of the new year.
Albany County Sheriff Craig Apple, during a press conference on Thursday, Nov. 21, one of eight like events across the state, said the law enforcement community recognizes a need for some reform, but actions taken by the state Legislature are misdirected, will cost municipalities money and make the streets less safe.
“It’s unrealistic to think, in this day and time, someone can enter your house, steal your property while you are sleeping, get caught on the front steps, get brought in front of a judge and have a mandated release without any cash bail or anything punitive or any assessment to gauge a risk of flight,” Apple said.
The non-violent burglary Apple is referencing is just one of some 400 specific crimes for which a judge could no longer set cash bail despite the defendants criminal history or risk of flight.
The rationale behind bail reform is that it is inherently unfair because the poor cannot afford a private attorney or, when bail is set, come up with the finances to stay out of jail until the case works its way through the courts to a disposition. Prior to a guilty plea or conviction, a person accused of a crime is presumed innocent and should not be jailed, according to advocates of the law.
“We realize there is a disparity. Sometimes poor people end up in jail for longer terms. People who can afford a private attorney get out while others do not,” Apple said. “What we are asking for is the state to slow down. To put the brakes on a little bit. Maybe reboot. And let the professionals have a seat at the table.”
The other change comes in the form of discovery, or the prosecutor’s obligation to give the defense evidence prior to a trial. Now, under the new mandate, the prosecutor must give up all evidence not longer than 15 days from a formal arraignment.
Schenectady County District Attorney Robert Carney said that timeline is unnecessary for all cases since only 5 percent of criminal cases come to trial and impractical because of the enormous amount of data prosecutors amass in a criminal case, including hours of video footage from body cams, dash cams and surveillance cameras.
Before, he said, discovery had to take place no sooner than 30 days before the start of a trial, which is near the end of the case and not the beginning.
“The defendant never knew the ID of cooperating witnesses but now we have to tell the cooperating witness we are going to turn over your ID and your contact information 15 days after the arraignment,” he said.
To bail reform, he said, under the new proposal “Bernie Madoff, the drunk driver who kills, a drug dealer from a Mexican cartel, child pornographers, school shooters who plan a shooting but have not purchased a weapon yet and those promoting prostitution for children under 13” will all get arrested, processed and then automatically released without having to set bail.
The purpose of bail, is to ensure a defendant returns to the next trial date, but Carney said judges can no longer take that into consideration when setting bail and cannot take into account the potential danger to the community should the defendant walk out of jail.
“We just want reasonableness and fairness,” said Patrick Phelan, the police chief in Greece and head of the New York State Association of Police Chiefs. “We are more than willing to accept changes in discovery, and comply with them, but we can’t do it in 15 days. We are asking for simple fairness. We are asking the state to allow the judges, who are elected by the people, to do their job. That’s why they are elected, to make these decisions. To have some say in if a person is dangerous and should be held or should be released.”
One benefit to holding people in jail, Apple said, is that it often paves the way to getting people into drug court or access to mental health help or other programs that are basically alternatives to incarceration. In many cases, they work best, said officials at the press conference, when the alternative to those programs is indeed incarceration.
“We’ve had parents, moms and dads reach out to us to tell us to take our son or daughter for a few nights. Get them into the SHARP program. A lot of these charges, the catch and release program, and we will just be putting them back on the street.”
Apple said, while it varies with people coming and going by the day, there will be about 90 inmates who will walk out when the law goes into effect.
The SHARP program is the Sheriff’s Heroin Addiction Recovery Program and it boasts a successful recovery rate and low recidivism rate for those who go through the program. In theory, since less people are cared for in jail, there should be extra money to provide programs like SHARP, but Apple said that is not the case and all law enforcement personnel at the press conference said there is no extra money from the state to help them provide such programs.
Other types of programs to keep track of defendants awaiting a trial or disposition of a criminal case like home visits, probation reporting and other types of monitoring are equally unfunded. Carney said New York City is tapping into some $100 million of asset forfeiture funds, something upstate counties do not have.
Law enforcement officials also spoke on the cost associated with the new standards and that includes more manpower to generate the evidence months faster than previously required and the catch and release go out and catch again scenario.
Colonie Police Chief Jonathan Teale said his department makes some 2,500 arrests per year on average and will likely have to rethink how he deploys his personnel.
“It will make our people busier. Some of those we arrest, we have to let go and they will just get re-arrested,” he said. “We will have to redeploy some officers to copy and build video and radio transmission and we will have investigators and dispatchers unavailable to answer calls from the public to make copies that really have no value at all.”
He said, for example, a shoplifting arrest, a relatively minor infraction that rarely goes to trial, but his officers will still have to chase down surveillance footage and turn it over to the DA within the 15-day time frame. Failure to comply with the 15 day discovery would result in cases being thrown out.
There are several crimes on that list and other troubling in other ways like burglary second. It’s troubling if someone breaks into house, they can be released, just to break into your house again. We want to see people treated equally, and reform is needed but this is not the way to go about it.”
The Legislature passed the reforms as part of the annual state budget approved by April 1. It remains unclear why the law enforcement community didn’t lobby when the bill was being debate or in the months immediately after and waited instead until a month before implementation.
For any rollback to happen would take an act of the Legislature, which are not slated to be back in session until after the New Year.
“I think much of it is long overdue. The idea people with money can get out on bail and people without money sit in jail without being convicted of a crime is just wrong. There are more people in jail not convicted of a crime than convicted of a crime,” said Sen. Neil Breslin, D-Albany. “We will monitor it closely to make sure there is sufficient money so the administration of the sheriffs’ offices and the DA’s offices have the resources to provide the necessary services. I think we will react to the implementation ofthe statute and then, if we find corrections are needed we will pass legislation to address them.”
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