Thoughts on Bail Reform – First published 1/24/2020

My Thoughts on the Bail Reform Law:

The Republican majority caucus of the Monroe County Legislature has begun the process of staging a show vote – with no jurisdiction as a legislature – urging repeal of the Bail Reform Law so much in the news these last months. Because I won’t have the time to fully explain my vote before the legislature, I will explain it here in writing.

I write as a crime victim myself, as a local justice who served for ten years, as a teacher spanning six decades [70s – 2020s] in the classroom, and as a Monroe County Legislator representing the 18th Legislative District.

In a forced choice between a bad law seeking to correct an unjust status quo and that unjust status quo, I refuse to be forced.

We must demand a better law.

Let’s begin with the unjust status quo. Defendants in our criminal justice system stand innocent before the law. Pre-trial detention – by definition – means the jailing of a person deemed innocent before the law. Bail cannot be used as punishment because punishment must follow a plea or conviction at trial. The sole purpose of bail – in its cash or bond forms – is as a guarantor of the appearance of a defendant in court. In a bail hearing – I held hundreds of them as a local justice – the court considers criteria which relate to to the defendant’s likelihood to appear or not appear for his or her next court appearance: character/reputation; family ties and ties to the community; criminal history; history of appearing for court dates; severity of the charges; employment and financial resources. In theory this system is fair. In application, it can put defendants who have little or no money in jail for weeks, months, and even years because – unlike the defendants charged with the same offense who have money and walk free – they are jailed for being poor. These defendants often lose their jobs, and their housing – leading to a spiral of poverty and future criminal behavior. They acquiesce to guilty pleas because they’ve already served time and just want to get out of jail to restart their lives.

Opponents of the Bail Reform Law have weaponized specific cases of defendants who have, after their mandated release, returned to continue the behavior for which they had just been arrested. This is an effective emotional appeal but ignores the fact that the defendant who can bail himself out can engage in this same behavior. Restoration of cash bail doesn’t change that reality.

Furthermore, the stories of impoverished defendants who committed suicide or were victims of crimes in jail – defendants charged with minor offenses, defendants innocent before the law – truly break the heart.

Now let’s consider the Bail Reform Law passed by downstate Democrats who dominate the political life of our state. The law is such an overreaction to the unjust status quo, that the controversy it has sparked has obscured the importance of the issue it tried to correct.

You may have seen the list of “non-violent” crimes which require immediate release under the Bail Reform Law:* 2nd degree Burglary of a residence* 2nd degree Burglary as a Hate Crime* 3rd degree Burglary of a commercial building* 3rd degree Burglary as a Hate Crime* 2nd degree Robbery aided by another person* 2nd degree Robbery as a Hate Crime* 3rd degree Robbery* Criminal sale of a controlled substance (multiple counts)* Using a child to commit a controlled substance crime* Criminal possession of a controlled substance (multiple counts)* Criminal sale of a controlled substance in or near a school* Criminal injection of a controlled substance into another person* Criminal sale of a controlled substance to a child* Criminal sale of a prescription for a controlled substance by a pharmacist* Criminal possession or creation of Methamphetamines* 3rd degree Assault* 3rd degree Assault as a Hate Crime* Reckless Assault of a child by a day care provider* Reckless Assault of a child* Stalking (multiple counts)* Stalking as a Hate Crime (multiple counts)* Vehicular Assault (multiple counts)* Aggravated Vehicular Assault* Aggravated Assault on a child under 11 years-old* Aggravated Assault on a child under 11 years-old as a Hate Child* Menacing (multiple counts)* Menacing as a Hate Crime (multiple counts)* Reckless Endangerment (multiple counts)* Promoting a suicide attempt* 1st degree Stalking while committing a sex offense* Criminal Obstruction of Breathing* Criminally Negligent Homicide* 2nd degree Vehicular Manslaughter* Aggravated Vehicular Manslaughter* 2nd degree Manslaughter* Unlawful Imprisonment (multiple counts)* Unlawful Imprisonment as a Hate Crime (multiple counts)

If you read the elements of these crimes, and picture the victim as yourself or one you love, very few of them will feel “non-violent” to you. As a personal example, in the early 1980s a convicted felon entered our house while my wife and kids were asleep upstairs. He helped himself to food in our kitchen, rummaged through my wife’s purse, took car keys, and stole our car. This did not feel “non-violent” to us, yet under the new law the defendant would be released without coming before a justice for a bail hearing.

Here is the central problem with the Bail Reform Law: Instead of requiring better decisions regarding bail, legislators have mandated no decisions re: bail. As a teacher, I have experienced my professional reality ignored by distant politicians who wrote the rules for evaluating me and my students. I fully understand how our law enforcement community and prosecutors feel ignored by the politicians who passed and signed the Bail Reform Law.

Step one to address this situation: key policy makers need to sit down with law enforcement, victims rights advocates, and the defense bar. Let’s hammer out a better law.

The state legislature and the governor need to understand that at the time of arrest, defendants may be- high on drugs; – intoxicated- highly agitated;- alone and without support of family; – uncooperative and uncommunicative. Yet law enforcement officers under the Bail Reform Law are required to issue appearance tickets to these defendants.

In a situation which requires consideration for the safety of the defendant, as well as safety for complainants/victims, law enforcement is handcuffed by the new law.

I propose a new category of commitment to jail in lieu of bail: 24 hour remand. The judge can – for a list of stipulated felonies – remand the defendant after setting bail for a 24 hour period only, after which a full scale bail hearing will be held with counsel present for the defendant. This would give everyone involved in the criminal case – defendant, victim, law enforcement, defense counsel – an opportunity to assess the best support system for the defendant when he/she is released or whether a continuance of cash bail is in order. Because in most jurisdictions arraignments are held 24/7 for remand to county jails, the 24 hour remand insures that defendants are not kept in jail for weeks or up to a month before returning for a sober and serious bail hearing.

A bail hearing held after a 24 hour remand is much more likely to arrive at a fair assessment of the criteria for determining bail: character/reputation; family ties and ties to the community; criminal history; history of appearing for court dates; severity of the charges; employment and financial resources.

Instead of show votes in the county legislature, let’s pressure the key policy makers in our state to resolve this issue as soon as possible.

John B. Baynes

Monroe County Legislator – 18th Legislative District