What do you do when a judge sets a murder suspect’s bail so low, he is able to post it and go about his business? The first thing, despite – and also because of – the justifiable sense of anger, is to take a deep breath. It’s usually a bad idea, in the heat of the moment, to respond to an outlier provocation with broad policy changes.
The provocation was surely severe and unexpected: Rather than remanding an indicted murder suspect to jail, as judges commonly do, State Supreme Court Justice John Michalski took the unusual step last week of allowing bail, which he set at $175,000. With that, Shane Casado, 24, posted a $17,500 bond and was released, despite all the usual flight risks of someone facing the possibility of life in prison.
Casado was arrested shortly after his ex-girlfriend, Rachael Wierzbicki, 22, was shot outside a home on Edson Street in November. He was initially remanded without bail but, following a hearing last week, Michalski changed his mind, somehow concluding that Casado was the right kind of murder suspect.
Maybe he will turn out to be right, but with his decision, the judge adopted a minority position among peers who take a distinctly different view of the range of likely behaviors of someone who may soon be spending the next several decades in Attica or Dannemora or one of the other guest facilities run by the state Department of Corrections.
The decision has predictably and justifiably stoked outrage, especially by the grieving friends and family of the victim. Even though bail is not supposed to be punishment – like all criminal suspects, Casado retains the legal presumption of innocence – it is typical for murder suspects to be denied bail. It’s not unfair. But what do you do when a judge has a different idea?
Among the responses Michalski’s action has produced is one that, like the bail decision, itself, is severe and provocative. Assemblyman Patrick Burke, D-West Seneca, is considering legislation to prevent someone indicted for murder ever to be released on bail. He calls the effort “Justice for Rachael,” who was one of his constituents.
We hope he’ll think about this a little more. Not only is it risky to advance significant legal changes when emotions are raw, but it’s also generally undesirable to tie the hands of judges. Around the country, we’ve seen the consequences of minimum sentencing laws – including New York’s notorious, now discarded Rockefeller drug laws.
Judges should be allowed to judge; that’s what they’re supposed to do. Like the rest of us, they can make mistakes, but not all mistakes call for legislative intervention. Sometimes, they call for shaking your head in disgust. Sometimes, they may call for the re-education – or retirement – of a judge who lacks judgment.
What is more, there has been no suggestion that Michalski’s decision is anything but an outlier. If one reckless driver continually speeds through a crowded city street, do you punish all drivers or deal with the offender? A broad response to an isolated event creates its own hazards.
Instead, this is a moment for thought and reflection. Just as Albany has been considering bail reform from the opposite end of the spectrum – moving toward abolishing it for low-level offenses – the Legislature could usefully examine the factors that go into bail decisions for violent crimes, recognizing that there are no perfect solutions. Whatever it might decide, though, it should do so coolly and only after considering all of the factors in play. Don’t rush into this.