Bail laws put NY in state of confusion
THIS past August, I decided to leave my position as the administrative judge of Queens Supreme Court, Criminal Term. This was a difficult decision, as I loved my job and my term was not set to expire until the end of 2024. But public safety in New York City is being undermined by politicians who lack the courage to stand up to misguided advocates. Retiring from the bench was the only way I would be able to speak my mind and correct the critical problems our criminaljustice system is facing, including bail reform. That is why I decided to run in the upcoming Democratic primary for Queens district attorney.
The NYPD brass is correct to criticize the no-bail reforms. However, the issues New York needs to confront go much deeper than just bail laws.
As a former judge, and as a former NYPD first deputy police commissioner, I know firsthand how important it is for all components of the criminal-justice system to work together to keep our city safe.
Ill-conceived laws
The ill-conceived criminal-justice package, signed by then-Gov. Andrew Cuomo in 2019, has plunged our system into chaos and created a politically driven crime wave. While the stated goals of the reform package (such as reducing the pre-trial jail population and making discovery rules fairer) were sound, the process was fatally flawed. The defense bar and political advocates were extensively consulted, while judges, prosecutors, and law-enforcement officials were largely ignored.
The consequences of this approach are seen every day. Quality-of-life enforcement was abandoned and crime on our streets and subways skyrocketed. Individuals with multiple offenses are continually arrested and set free. Index crimes are up nearly 30% throughout the city, and in some patrol boroughs, such as where I live in Queens North, by over 44%. Police presence alone is not enough, as evidenced by regular unprovoked attacks in our city’s transit system.
In theory, this was all crafted in an effort to close Rikers. But this plan has backfired. The bill, passed by the City Council, was based on an artificially low daily population headcount of about 3,300. This number was budgetbased, not data-based. The current population of nearly 6,000 shows no signs of decreasing anytime soon.
If all of the proposed local community jail facilities were available tomorrow, Rikers would still be needed to house approximately half of the jail population.
Furthermore, the 2019 reform package failed to permit judges to consider the potential “dangerousness” of an individual when making decisions on bail. Additionally, judges are unable to consider the defendant’s criminal history, their likelihood to come back to court, and the nature of the offense.
During my tenure as a judge, a number of disturbing cases arose, including some that were so confusing that district attorneys, judges and defense attorneys differently interpreted the law with respect to applicability of bail. Under the current statutory structure, it will be many years before this confusion is sorted out, if ever. In my experience, it is examples like these that cause the public to lose faith in the ability of the criminal-justice system to protect them.
Based on my knowledge of the criminal-justice system, through my roles as supervising judge in Bronx Criminal Court and administrative judge in Queens Supreme Court Criminal Term, there is no good reason for this problem to exist. It is obvious that despite the wording of the law, the Legislature actually wants judges to consider dangerousness. The offenses that are qualified as bail eligible, such as homicide and rape cases, are overwhelmingly those offenses that would evince concerns of dangerousness. This duplicitous approach to statutory construction is at the root of all of this confusion.
In order to fix the problem, the Legislature must be honest with its statutory intentions and adopt a dangerousness standard for bail, as is the case in the other 49 states and in the federal courts.
The same confusion exists with regards to discovery, as new laws have created serious challenges throughout the city. District attorneys, judges and defense attorneys are regularly coming to different conclusions on which records must be produced. In my home borough of Queens, implementation of discovery reform has been illogical and unorganized. The haphazard sharing of thousands of documents by prosecutors makes the system more difficult and tedious, not easier.
Immense problems
Between the gutting of qualityof-life enforcement, the Rikers debacle, the undermining of judicial discretion, and disorganized discovery practices, our criminal-justice system is facing immense problems.
In the mid 1990s, I was part of the team, working under Police Commissioner Bill Bratton, that created unprecedented levels of public safety in our city and served as a national model. We know what to do to get our city back.
District attorneys must have the courage to take responsibility for public safety and work with the NYPD to re-establish fair and effective quality-of-life enforcement, starting on our subways.
Gov. Hochul must correct the mistakes made by her predecessor by calling on the Legislature to convene a special session to stop the undermining of judges, hold lawbreakers accountable and — most importantly — make us safer. The bottom line is this: If the criminal-justice system can’t stand up for public safety, who will?
George Grasso is a former administrative judge of Queens Supreme Court, Criminal Term. He is running for district attorney of Queens.