The issue of bail reform is an excellent example of social media being used as propaganda. First of all, I did not vote for bail reform. It was grouped in a budget bill with other issues I could not support, so I voted “no.” That being said, I support the concept of bail reform in which bail is reserved for violent offenses. When bail reform was first passed, the list of violent offenses was too small and needed to be expanded. That list was not acceptable. Also, bail should be permitted when the accused has prior violent felony offenses. Second, for propaganda purposes, some people have spread the idea that bail is used to keep dangerous criminals in jail. That is not true. Bail is a system in which an amount of money is paid to gain release from jail pending trial. If the accused did not appear for trial, the money would be forfeit, thus providing an incentive for people to appear at trial.
The U.S. Constitution says that bail cannot be excessive. Nonetheless, oftentimes, people were too poor to make bail, so only the poor stayed in jail, even if innocent. Dangerous criminals were released if they had money, or someone had money, to get them out until they were convicted at trial. Bail has never been the thing that gets dangerous people off the street. That’s called conviction and sentence.
In addition, I must point out that bail reform was jammed into the governor’s 2019 budget, which prevented complete and full review of the issue. I have written Op-Ed pieces calling for elimination of gubernatorial control of the budget process and keeping policy issues (like bail reform) out of the budget. Bail reform should have gone through the normal legislative process.
Eventually in 2020, the bail law was corrected in a very close vote. Many members supported keeping the law as it stood at that time. I voted to change the law, that is to amend the law to add many more crimes to the category of violent crimes for which bail could be required. For example, I was the leading spokesman in the Assembly for adding burglary in the second degree to that list. Although this is a burglary that takes place when the residents are not home, my constituents (and I) believe this is a serious home invasion and violation of privacy which is properly categorized as a violent crime.
To be clear, I do not support the idea that judges should be given unbridled discretion in setting bail. Expanding “judicial discretion” is not the way to fix problems in the criminal justice system. This concept is contrary to John Adams’ famous desire to create “a government of laws, not of men.” I agree with Adams. I have been practicing law for over 30 years. It is a mistake to place unbridled power in the hands of any man or women. Judges are not inherently more intelligent, more well-read, more committed to the law, or more bias-free than anyone else. The solution is to have clear rules of law that judges must follow, so that when you go to court, the ruling will not come as a surprise to the parties or the public. For example, because of the inconsistencies among judges, the federal government adopted the Federal Sentencing Guidelines so that all who come before the court will be treated equally. There are exceptions built in for various unusual circumstances. Our State should adopt the same approach.
Phil Steck is a member of the New York State Assembly representing District 110, which includes the Town of Colonie and portions of Schenectady County.
