If by calling for state officials to rethink bail reform, critics mean there are areas to tweak, we agree. But that’s not what they seem to mean. Instead, they want Albany somehow to drop the bill it passed this year after some 18 months of effort because it is imperfect.
State officials should look past those doubts and listen instead to Erie County District Attorney John J. Flynn, who for the past 18 months has implemented a policy similar to the legislation that will take effect on Jan. 1. He also has some concerns about the new law, but is a firm supporter. Calling worries about bail reform “a little overblown,” he offered reassurance to those calling for a delay: “The world will not end come Jan. 1.”
In fact, the change in the law will benefit the cause of justice while reducing costs. And if Flynn’s experience carries forward, it will do so without creating a serious risk of increases in crime or no-shows at subsequent court dates.
Nevertheless, some critics, including many police agencies, are calling for the state, in some mysterious way, to back off a law that was debated for 18 months before being adopted this spring. It’s an odd request. The law’s history shows there was plenty of time for interested parties to make themselves heard and, what is more, its advocates note that states that have already enacted bail reform haven’t seen an increase in crime and that defendants are actually more likely to show up for court appearances.
“It has been studied. It works,” said Orlando Dickson, a civic educator with the Partnership for the Public Good.
The point of the law is to ensure that people charged with low-level offenses are not jailed before trial simply because of poverty. A gainfully employed stock trader may easily manage $1,000 bond, but a jobless store clerk, charged with a similar crime, is likely to sit behind bars until his case is resolved.
Race is also tangled up in the question of bail. Observations last year by the Partnership for Public Good found that white defendants were released without bail 17% more often than black defendants and 22% more often than Latino defendants. While the figures don’t represent a scientific assessment, they are troubling nonetheless.
A welcome side benefit is that public costs can be significantly reduced. Speaking with The News editorial board last week, Flynn said that based on his own bail policy, the number of pretrial inmates in Erie County’s two jails declined by 50% since September 2018. At an average per-inmate cost of $164 per day, the savings top $35 million, and that’s just in Erie County.
As Flynn noted, though, the law needs tweaking. He echoed some of the same concerns as other law enforcement officials, including Niagara County Sheriff James Voutour, but he has no problem making repairs in the next session of the Legislature rather than delaying the implementation of a valuable law.
Among Flynn’s top concerns is that suspects charged with misdemeanor counts of domestic abuse would not be subject to bail. That could be overcome if the suspect violated an order of protection, but it takes only one violation to cause serious harm. Judges should be allowed to use their discretion in such cases.
Drug crimes count as another concern. While a “major trafficking” felony is on the list of crimes for which bail can be imposed, it is difficult to prove and rarely charged. Instead, prosecutors more often pursue charges of criminal possession or criminal sale. They are not on the list, so bail is prohibited. A high-level suspect, charged with one of those crimes, could quickly flee the jurisdiction.
Flynn has already directed his staff not to ask for bail in misdemeanors and nonviolent felonies unless they have “a darn good reason” for doing so. Such reasons could include a suspect with repeated bench warrants for domestic violence. He will lose that flexibility under the new law.
Flynn and others in law enforcement are also concerned that the law speeds up the time in which prosecutors must provide evidence to defense lawyers. With some exceptions, the new law will require that task to be accomplished within 15 days, but it provided no funding to meet that logistically complex requirement. Because of that, Flynn secured 18 new hires from the county, at a cost of $1.2 million.
For offices that haven’t prepared for that accelerated task, there could be difficulties, but it’s not a reason to delay implementation of the law. It is a reason for them to get busy. They could start by securing the savings that will be produced by smaller jail populations.
Change is frequently stressful and law enforcement is no less susceptible to that than anyone else. But this change has been well considered, implemented elsewhere and well considered by Erie County’s calm and perceptive district attorney. Given that, there is no reason to delay.