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Fewer inmates, more larcenies: Sifting through bail reform controversy

Sherman Price looked confused about what was going on as he sat handcuffed in Cheektowaga Town Court on Wednesday.

He wasn't the only one.

In a new era of criminal justice reform in New York where people arrested on misdemeanors and low-level felonies are supposed to be freed on appearance tickets, he was about to get sent to jail.

The 44-year-old man was arrested the night before in Buffalo. It was at least the sixth time he had been taken into custody since the beginning of the year – every time on charges related to larcenies or burglaries in Buffalo and Cheektowaga. Three of the cases involved the alleged theft of snowblowers. Each time he was arrested, he had been released from custody on an appearance ticket, in keeping with new bail reforms that went into effect Jan. 1.

But on Wednesday, a prosecutor asked Town Justice David Stevens to set bail on Price, citing a provision in the reforms that allow a judge to set bail if a defendant is arrested on a felony while free on another one.

"Mr. Price, you have a little bit of an issue," Stevens said.

"$30,000 cash bail," Stevens ordered.

Price was escorted back into lockup and later transported to Buffalo, where, on Thursday, he was arraigned on two more school burglaries.

Before bail reform, judges in New York had a lot of leeway in deciding who got bail.

Now, as Price's case illustrates, judges face strict guidelines on when they can set bail, even for a defendant who appears over and over in their courtrooms.

Many law enforcement officials across the state say the bail reform laws go too far. Some are calling for the legislation to be repealed. Others are hoping for some exceptions to be added to the law to keep more offenders in jail.

But supporters say the new laws are working the way they were intended: They are making sure defendants accused of non-violent crimes aren't being kept behind bars as they await trial simply because they can't afford to post bail.

Fewer inmates after bail reforms

On Jan. 1, a sweeping set of criminal justice reforms took effect in New York, including bail reform and new rules that require prosecutors to show all evidence to defense attorneys within 15 days of an arrest.

Law enforcement officials have been sounding the alarm about both, warning that crime rates are sure to go up with fewer people spending time in jail as they await trial.

Indeed, there's been a dramatic drop in the jail population in Erie County, where District Attorney John J. Flynn began implementing his own bail reform policies in September 2018 by instructing his assistant district attorneys to stop asking for bail for most misdemeanors, unless there was a strong reason to do so.

On Sept. 1, 2018, some 1,074 people were being held pre-trial in either the Erie County Holding Center or the Correctional Facility, Flynn's office said. On Friday, there were just shy of 500 pre-trial inmates in Erie County.

The bail reform laws only deal with incarceration before a trial; the reforms have no impact on prison sentences, which are set after a defendant either pleads guilty or is found guilty following a trial.

Bail reform advocates push back against calls for moratorium

Has crime gone up?

Several police departments, including Buffalo and New York City, are reporting an uptick in certain crimes.

In Buffalo, property crimes reported in January are up significantly compared to the previous January. There were 173 burglaries in Buffalo last month, compared to 110 in 2019, according to figures provided by the Buffalo Police Department. That followed three years of a dropping burglary reports in the city.

There was also a rise in the number of larcenies, with 549 in January 2020, compared to 388 in January 2019.

Vehicle thefts were up, too, at 102 this year compared to 59 the previous year.

Other police agencies – Amherst, Cheektowaga and West Seneca – are reporting an uptick in larcenies this January compared to the previous four years. Other types of property crimes did not appear to change significantly.

In New York City, where police statistics showed a nearly 37% increase in the number of robberies, Police Commissioner Dermot Shea wrote an op-ed in the New York Times titled "New York's New Bail Laws Harm Public Safety." He called for giving judges discretion to hold some defendants "whom they determine to be genuinely dangerous, including chronic repeat offenders."

Syracuse police reported burglaries went up from 46 in the first four weeks of 2019 to 81 during the same time in 2020. In Rochester, burglaries dropped from 81 in January 2019 to 72 in January 2020, but larcenies went up, from 306 to 365, and car thefts rose from 56 to 60.

"It's very concerning for us and for all police agencies across New York State," said Buffalo Deputy Police Commissioner Joseph Gramaglia. "We are having conversations about how it relates to the law changes."

Supporters of the new bail rules cautioned that it's too early to say what kind of impact bail reform is having on crime rates.

"We really don't know yet," said Kevin M. Stadelmaier, the chief attorney of the criminal defense division of Buffalo's Legal Aid Bureau. "The law has only been in effect for 37 days. ... We don't even have verified stats for 2019 yet. It's anecdotal at best and gross exaggeration at worst."

He argued that dangerous criminals have always been let out of jail before trial, as long as they could afford to post bail.

"If they can pay the bond, they can be released," he said. The debate over bail reform is "far less about dangerousness as it is about criminalizing impoverished minority populations."

Stadelmaier spoke at an event organized by the Repeal Bail Reform Task Force, made up of Republican state senators, held Thursday in Buffalo. The vast majority of speakers at the event were law enforcement officials from Western New York who expressed grave concerns about bail reform.

Among those calling for repealing was Erie County Sheriff Timothy Howard, who has seen 30 inmates die in county lockups in the last 15 years. He told the senators that the drop in the number of defendants being held in jail before trial means fewer people will be able to participate in jail programs that address issues such as recidivism, substance abuse and anger management.

"They no longer will be able to obtain these services," he said.

Law enforcement agencies statewide call for rethinking details of bail reform

Seeking tweaks to law

Some, like DA Flynn are calling for tweaks to bail reform laws.

"I am in favor of bail reform overall," said Flynn. "I'm not looking to blow it up. All I'm looking for is to make changes."

His office successfully requested bail be set for a crew of suspected burglars in Amherst by charging them with second-degree attempted burglary, rather than second-degree burglary, which under the new law does not qualify for bail.

"Attempted burglary, for whatever reason, is a qualifying offense," Flynn said.

He wants second-degree burglary, along with a subsection of second-degree robbery and more drug felonies, put back on a list of qualifying offenses for bail.

He'd also like judges to have some discretion for certain types of cases, such as those involving what he called "perpetual offenders."

"If an individual just keeps committing crimes while they have pending charges, there's a good chance at some point they are not going to come to court and that makes them a flight risk," Flynn said. "That would be the justification for bail."

Staff reporters Stephen T. Watson and Barbara O'Brien contributed to this report.

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