Bailing on a flawed law

Thank you, Senate Majority Leader Andrea Stewart-Cousins. Thank you, fellow senators including Mike Gianaris, Zellnor Myrie, Jamaal Bailey, Brian Benjamin, Luis Sepulveda and Todd Kaminsky, who, much to the consternation of their fellow Democrats in the Assembly, are listening to legitimate criticism and proposing adjustments to a flawed bail reform law jammed through with too little thought last spring.

Cash bail as it used to function in New York was outrageously unjust. It allowed a wealthy individual accused of a crime to await his trial in freedom, while a poor individual charged with the same offense typically languished behind bars. Combined with unfair discovery laws, that effectively coerced thousands of people of little means into taking plea deals.

Last year’s supposed fix, which took effect on New Year’s, maintained cash bail for violent crimes while eliminating it wholesale for a range of offenses. Those accused of misdemeanors and felonies deemed not violent (the line is a blurry one) are automatically released pretrial — even if they’re a flight risk, even if they’re a serial reoffender or a serious danger to society.

To cite just one example, this means a man accused of strangling his wife but not crushing her windpipe can under no circumstances be jailed.

Under the Senate’s framework, cash bail would be banned entirely — once and for all ending the practice of disparate justice based on income. Good.

And judges would gain essential latitude to remand, or order held, individuals when prosecutors can establish a high likelihood they may cause serious physical injury to others. Good.

The bar should be high. It is no small thing for a court to lock someone up, without even the possibility of bail, pretrial. (Importantly, defendants would have the opportunity to appeal a decision to remand.)

But in some rare cases, it is the only responsible choice.