The Capi­tol Con­nec­tion: Bail re­form a hot topic for de­bate

The Saratogian (Saratoga, NY) - - FRONT PAGE - Alan Chartock Capi­tol Con­nec­tion

There is a huge on­go­ing po­lit­i­cal de­bate about bail. In the past when some­one with­out means was ar­rested, they could rot in jail for weeks, months or even years. That adds to the num­ber of those in­car­cer­ated in the United States which is huge and dwarfs most of the other pri­son sys­tems in the world.

Sta­tis­ti­cally, if you are Black or His­panic your chances of be­ing in a New York pri­son are much greater than if you are Cau­casian. So why is this hap­pen­ing? Well, there is a so­ci­o­log­i­cal rea­son. In this coun­try, founded in large part on the backs of slaves, there has been a con­tin­uum of keep­ing peo­ple of color in their places by those in con­trol. You can yell at this col­umn all you want but that is the truth. Put an­other way, if you dis­crim­i­nate against peo­ple of color and de­prive them of equal op­por­tu­nity — in­clud­ing ed­u­ca­tional op­por­tu­nity, employment op­por­tu­nity and po­lit­i­cal op­por­tu­nity — you will cer­tainly force some (cer­tainly not all or even a ma­jor­ity) of these peo­ple into crime.

Nowhere is this lack of equal op­por­tu­nity more ob­vi­ous than in our crim­i­nal jus­tice sys­tem. If you are ar­rested for com­mit­ting a crime and you have money, it will be rel­a­tively easy for you to make bail, al­low­ing your re­lease while oth­ers with less eco­nomic means will lan­guish in jail.

With the Democrats now in com­mand of all three branches of New York’s govern­ment, the pas­sage of leg­is­la­tion cor­rect­ing this in­tol­er­a­ble sit­u­a­tion was in­evitable.

Now the leg­is­la­ture has passed, and the gover­nor has signed, a law that in­structs judges that in the cases of crimes that do not in­volve ac­tual vi­o­lence, they must free the ac­cused with­out im­pos­ing bail. I love that idea be­cause, among other things, it puts a hole in the in­come of the bail bond peo­ple who can earn their for­tune by liv­ing off the mis­for­tune of those on the wrong side of the law.

On the other hand, we have to con­sider the so­called Willie Hor­ton ef­fect.

No doubt, there will be some among those who are be­ing re­leased who will go out and recom­mit of­fenses against the so­ci­ety in which they live. It’s not dif­fi­cult to imag­ine the feel­ings of some­one who had been robbed, or em­bez­zled from, or threat­ened and then saw the ac­cused felon walk­ing free. We know that in­tim­i­dat­ing a wit­ness is against the law but if some­one is be­hind bars, it is much harder for them to threaten re­tal­i­a­tion by ac­tion or even phys­i­cal prox­im­ity.

When an al­leged crim­i­nal who has been re­leased with­out bail com­mits an­other crime, the hue and cry of the mid­dle class will be sub­stan­tial. In fact, the pres­sure is ex­traor­di­nar­ily great for the Democrats — who are re­ly­ing on the votes of the folks who have been so wronged for so long — to get back to Albany and fix the ex­is­tent mess in the com­ing leg­isla­tive ses­sion. So what to do? Well, the leg­is­la­ture can in­crease the pow­ers of the judges so that if these judges be­lieve the pub­lic safety is threat­ened, they can use their dis­cre­tion to as­sess bail. That pre­sumes that all judges will see de­fen­dants in the same way. Of course they will not, as­sum­ing that the ge­o­graph­i­cal and eco­nomic dis­par­i­ties of in­di­vid­ual judges and ge­o­graphic districts will con­tinue as they are.

This all puts the Democrats in the leg­is­la­ture be­tween the prover­bial rock and a hard place. They can ei­ther side with those who have tra­di­tion­ally been screwed by the sys­tem, or with those who have the where­withal to make out like ban­dits un­der the sys­tem.

My bet is that you will see a coali­tion form be­tween up­state Democrats and Repub­li­cans who will vote to give back power to the judges. The snow­ball has al­ready started to roll down­hill.

Alan Chartock is pro­fes­sor emer­i­tus at the State Univer­sity of New York, pub­lisher of the Leg­isla­tive Gazette and pres­i­dent and CEO of the WAMC North­east Pub­lic Ra­dio Net­work. Read­ers can email him at [email protected]

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