Bail laws not always to blame
Statistics show that New York’s judges have abundant options for alleged wrongdoers, but aren’t always using them.
The latest panic related to the criminal justice changes put in effect in 2019 was prompted by an incident in Times Square last week in which NYPD officers attempting to disperse an unruly crowd were punched and kicked by a group of young men as officers attempted to make an arrest.
While the full video record, including the officers’ body camera footage, hasn’t been released yet, what’s already on view shows a chaotic and wholly unacceptable scene in which police were placed in peril merely for doing their jobs. Seven people were arrested, all migrants. Five face charges of assault on a police officer, gang assault, obstructing governmental administration and disorderly conduct. After arraignment, they were released on their own recognizance. Two others were charged with robbery and felony assault; one of those men was subject to bail in the amount of $15,000. The office of Manhattan District Attorney Alvin Bragg initially declined to prosecute the second man charged with robbery, citing a lack of evidence. If any of these men are convicted of violent felonies related to this incident, they should serve their sentence and face deportation.
As expected, this episode has once again prompted angry denunciations of New York’s 2019 changes to bail laws — which is odd, considering that all seven of the defendants in this case faced bail-eligible charges. Mr. Bragg’s office chose to ask for bail against only one man, but the judge had the power to impose it regardless of the district attorney’s preference. In keeping with general judicial deference to prosecutors, the judge chose not to.
Over and over again, we are finding that an oftenoverlooked aspect of the criticism of the criminal justice system is prosecutors and judges who decide against jailing or imposing bail on defendants. The statistical picture here is nuanced based on region and category of crime: Times Union reporter Joshua Solomon’s recent analysis of the most currently available statistics on retail theft shows that while the numbers vary across the state, judges overall tend to be imposing bail more often than in previous years.
But elsewhere, judicial discretion has combined with ongoing deficiencies in state law in ways that have led to tragic outcomes. The Times Union’s Brendan J. Lyons has reported extensively on gaps in both the language and implementation of New York’s Raise the Age law that have resulted in young offenders with extensive records of gun-involved crimes being released without appropriate supervision who go on to commit new crimes — including homicides. Legal experts have noted that many of these judicial decisions expose vagueness around terms such as “significant physical injury” and “extraordinary circumstances” that leave judges reluctant to take stronger measures against these offenders.
There is, in other words, urgent work to be done on New York’s criminal justice laws regarding when defendants should remain on the streets before trial, and the mechanisms put in place to prevent them from reoffending. But overbroad and otherwise fact-averse criticism of the changes made in 2019 serves the best interests of no one — victims, defendants or law enforcement — except perhaps those trying to score political points.