Without judicial discretion, bail reform is f lawed

Give the governor and Legislature credit for winning major criminal justice reforms. Far stricter discovery rules require prosecutors to swiftly turn over evidence. New safeguards to the right to a speedy trial will help rebalance the scales of justice.

But reforms to cash bail give serious cause for worry.

We were as morally offended as anyone that in New York, a rich defendant could go free while a poor one accused of the same crime might languish in jail pending trial for want of a few thousand dollars.

But it was crucial that any fix retain one key feature of bail: giving judges at least a sliver of discretion to hold people pretrial when the prosecution proved it necessary to protect the public or ensure return to trial.

Under the new law, only toplevel felonies and a handful of other offenses will be eligible for cash bail or remand. In all other cases, it’s mandatory release. No exceptions.

What that means in the real world:

Anna Sorokin, currently on trial for a series of fraud schemes, is charged with grand larceny 2, a felony that under the new system triggers mandatory release. She previously failed to appear in court. Given that history, prosecutors asked for and were granted remand.

In the future, that would be impossible.

James Currie’s infant son’s corpse was found floating in the East River earlier this year. After being charged with concealment of a human corpse, a class E, nonviolent felony, Currie fled to Thailand; he was captured there, brought back and remanded, at which point he faced trial on that and more serious charges. Under the new law, neither bail nor remand would be permitted for the initial charge.

James Rackover, sentenced last year for the killing of Joseph Comunale, was initially indicted on hindering prosecution (a class D felony), tampering with physical evidence (a class D felony) and concealment of a human corpse (a class E felony). Prosecutors requested remand; the judge set high bail. A future Rackover would be cut loose pretrial.

Why were legislators so afraid of letting judges exercise discretion?