bail reform

Ask the people -- police officers -- who deal every day with crime victims, and those accused of committing the crimes, and New York's landmark 2019 bail reform law just isn't working.

It isn't working for victims, because they either get re-victimized, or there are new people victimized because accused criminals are free sooner to commit new crimes, or victims simply decline to press charges because they know the accused person will just be issued an appearance ticket.

And it has also failed the people it was supposedly designed to help: criminal defendants.

Those accused of a crime are now more frequently set free to commit new crimes and dig themselves into a deeper hole, or they don't appear before a judge or go to jail where they are afforded the opportunity they need to enter substance abuse programs.

"The joke is (among officers), it's like fishing. It's 'catch and release,'" said Batavia PD Det. James Defreze.

Chief Shawn Heubusch added, "It is catch and release, and they understand, the officers understand, what the laws are, and we're here to enforce the laws. But the laws are not helping our citizens. At least this particular law is not helping our citizens. It's not helping the community at large."

The Batavian spoke with Heubusch, Defreze, and Sgt. Christopher "CJ" Lindsay this week about the impact of bail reform on the department and the community after a series of press releases from Batavia PD about individuals who have been arrested multiple times on warrants for failure to appear for various minor offenses.

In press releases about arrests, Batavia PD has recently been highlighting criminal defendants who get are repeatedly arrested on failure-to-appear warrants three, four, or five times.  Unfortunately, there isn't clear data that judges are issuing, in the aggregate, more warrants, because, by policy, the department no longer seeks warrants on unpaid parking tickets, and with the legalization of cannabis possession, there are fewer marijuana-related arrests. That means there is no way to make a meaningful comparison from one year to the next of the total number of warrants.

The Why of Bail Reform
The path to bail reform in New York perhaps began in 2015 with the death of Kalief Browder. Browder had been held in Rikers Island on cash bail of $3,000 after being accused of stealing a backpack.  Browder said he was subjected to mental and physical abuse. His charges were dropped after three years of pre-trial condiment for lack of evidence. Upon his release, he committed suicide.

Advocates for bail reform said confining poor people, who can rarely make bail, on charges without conviction was a violation, at least in spirit, of due process. Advocates pointed to statistics that poor blacks, especially in the state's cities, were more likely to be held on bail, than white defendants. 

In 2018, in his State of the State speech, Gov. Andrew Cuomo picked up the cause of bail reform.  

"Let's be painfully honest: The truth is that our Lady Justice is still not colorblind, and her scales are still not balanced," Cuomo said. "Our bail system is biased against the poor. Too many jails are cruel and inhumane, and our court system is too slow."

Bail reform was approved by the State Legislature in 2019 and was meant to reduce incarceration by limiting the need for defendants to come up with money to pay for their liberty. The new law mandated pretrial release for the majority of nonviolent charges and required that judges consider a person’s ability to come up with the cash to pay bail or security to post bond.

On low-level, non-violent charges, officers must issue appearance tickets rather than hold the suspect for arraignment (where, in most cases, they would have been released under the old system). When suspects are arraigned, judges must release defendants without requiring bail and with no conditions on their release ("on their own recognizance").  In certain conditions, they can put conditions on their release ("released under supervision").   If bail can be set, the bail amount must be the lowest amount possible that is affordable for the defendant.  That's why you sometimes see bail set at $1.

There are multiple exceptions and conditions that police officers and judges must follow.  That is one of the complaints lodged by Heubusch.  The bail system is arcane and confusing.  

As an example, Heubusch cited a recent case where a suspect was arrested for burglarizing a restaurant.  The suspect was released following his arrest.  The next day, he burglarized another restaurant.  The judge misunderstood the standards of the bail reform law in this particular circumstance and released the suspect again.  He was arrested 20 minutes later after burglarizing another restaurant.

"So we now have one individual that has three burglary charges -- felony burglary charges," Heubusch said. "Again, he could have been held on that second arraignment, but there was a misunderstanding between the judges as to what they can actually do when it comes to that type of thing."

To help us understand how complex the new bail rules are, Heubusch pointed us to this web page on bail reform for the state's public defenders. It contains this matrix of qualifying (for bail) and non-qualifying (no bail) options. It also contains this flow chart that helps guide anybody in the justice system on when to require bail or when to release a defendant. 

Bail reform makes law enforcement harder
Being a police officer is inherently a risky job, and police officers accept that risk, Heubusch said.  It's also a tough job where officers are expected to deal sometimes with uncooperative or even hostile criminal suspects.  But that aspect of the job has been made worse, by bail reform, Heubusch said.

He said when people understand they're going to get an appearance ticket, they're more likely to flee or or fight with an officer because resisting arrest won't elevate the seriousness of their criminal activity.

"We've seen people run from us, fight with us, and attack us more than they did before, in my opinion, because they know, it's not taken as seriously or, you know, 'haha, I can get away with it. I'm gonna get a slap on the wrist from the judge. See you next week or see you tomorrow,' that type of thing," Heubusch said. "It just seems that the attitude, to resist arrest, to fight with the cops, has increased."

Bail reform has also made it hard to get drug dealers off the street, Defreze said.  

First, the Class B felony of criminal sale of a controlled substance in the third degree is a non-qualifying offense, meaning a judge can't automatically set bail.  Defreze said he's seen dealers back on the street selling narcotics within five hours of their arrest.  

"Pre-Bail Reform, we were pretty effective and successful in removing drug dealers from our community," Defreze said. "We would find people, we would arrest them for possession with intent to sell or for criminal sale, both (Class) B felonies. When we got the indictment warrants, those people would go to jail. Now the majority of these people are getting charged with two to four Class B felonies, and they go see a judge, and they're released. Then people were calling, saying these people are selling drugs in my neighborhood."

That arrest was made after months of work that involved finding and working with a confidential informant, gathering evidence, reviewing the evidence with the district attorney, and presenting the evidence to a judge to get a warrant either for a search or an arrest.

When a recently released dealer just hits the street again, he can't just be arrested on the spot. The whole process must start again.

But now it's harder to find confidential informants.

"Bail Reform, in and of itself, made getting a CI inherently harder," Defreze said. "People used to be, there was some kind of fear that they were going to go to jail for minor offenses. You'd catch someone for stealing from Tops, and they wouldn't want to go to jail for that. They would cooperate to have that charge go away. I mean, CIs for minor offenses are a thing of the past."

Victims
Bail reform hasn't been good for crime victims, the officers said.

"What's been missed during this whole thing, just from my perspective, is we've completely forgotten about the victims," Heubusch said. "We've created a system that cares about the defendants, and we care about the defendants as well, we certainly want don't want to hold somebody for years upon years upon years on petty crimes because that doesn't make any sense. But the victims are now being re-victimized over and over again by the same offenders. So I think that's, that's the biggest frustration that you see from law enforcement because we are out there trying to make sure that our communities are safe."

In March, deputies arrested two men in Elba on property crimes. Under terms of Bail Reform, the deputies had no choice but to release the suspects on appearance tickets. The two men were processed at the Genesee County Jail and released. Upon their release, they allegedly stole a car, leading to a police pursuit across multiple jurisdictions.

Bail reform has made orders of protection less effective, the officers said.

Domestic abuse always involves a human victim, so that means the arresting officer can haul the suspect in front of a judge for an arraignment. That gives a judge a chance to issue an order of protection, but unless the crime is a qualifying violent felony, the judge has -- at least until now -- limited power to set bail.

"I can think of a domestic situation where somebody was arrested for harassment, and they were arraigned in front of the judge, got an order of protection, but they had to be released, and they went right back to the house and violated the order protection," Heubusch said.

Bail reform has also led crime victims to ask officers not to arrest offenders, Lindsay said.

"Obviously, we understand the defendants have rights but like (Heubusch) said, we kind of forget about the victims," Lindsay said. "I've had numerous times where we have a case where the victim wants to have someone arrested, so they'll ask us, 'are they going to be held in jail,' and we tell them, 'no, we can't hold them, so they say 'well, I don't want him arrested then because I don't want to deal with whatever fallout.'"

Lindsay said victims are also frustrated.

"We're probably dealing with more angry victims," Lindsay said.

The law is confusing
Heubusch came to the interview with The Batavian carrying a sheaf of paper. He had printed out the matrix, flow charts, and rules officers, attorneys, and judges must know in order to ensure nobody is jailed in violation of the law.

It's a lot to know and a lot to keep up with, and even sometimes judges get it wrong, he said.

"We had a situation where an individual burglarized a restaurant," Heubusch said. "He was arraigned, released and burglarized another business that weekend. He was arraigned, and the judge misunderstood that it was a new charge and released him. He burglarized another restaurant after he left. So we now have one individual that has three burglary charges -- felony burglary charges. And, again, could have been held on that second arraignment, but there's a misunderstanding between the judges as to what they can actually do when it comes to that type of thing."

Defendants harmed by Bail Reform
When defendants are released on appearance tickets, no judge gets an opportunity to recommend a substance abuse or mental health program. When a criminal defendant is free to re-offend, they sometimes do.

"If you look at it, from the defendants' standpoint, this person now has the opportunity to rack up multiple criminal charges to make that sentence, maybe harsher on them," Heubusch said.

He said his officers have seen defense attorneys ask judges to set bail in cases for the sake of their defendants.

"The only way they know their guy is gonna get help is by sitting in jail because the jail will provide that assistance to them, whether they want it or not," Heubusch said. "It'll at least be in front of them. If they get to walk away from that arraignment without being held, the chances of them going out and reoffending are very good. The chances of them going on or overdosing and dying are even higher."

We asked Heubusch in a follow-up email if he had any data on the number of times defendants have been released from custody only to OD, and Heubusch said, "I am not able to put together stats as quickly as I would like to, but we do have cases where individuals that we know to have substance abuse issues have committed crimes and while out pre-trial they have overdosed and died. If judges had the ability to incarcerate these individuals for, what the lawmakers are calling petty crimes, they would be offered assistance and/or mandated assistance pre-trial. This could keep some alive."

Ideas to reform the reform
The police chiefs in New York, Heubusch said, have their own ideas about how to fix bail reform.

First, end cash bail.  That is, in fact, right in line with what downstate reformers want.  Defendants should either be held pre-trail, with no bail, or released.  That would end the perceived unfairness of people with a bit of money being able to get released while poor defendants must stay locked up, unable to get to jobs or care for families.

"The amount of money sitting in your bank account should not determine if you're a free person or not," Heubusch said.

And allow judges to determine whether a person is a danger to himself, another person, or the community.

"We're the only state in the United States that doesn't have a dangerous statute in our law," Heubusch said. "Bail is set specifically upon reappearance for court. We're the only one that doesn't include dangerousness. I don't know why New York wants to lead the way in that, quite honestly, because the communities are suffering because of it. So eliminate cash bail altogether. There's no reason to have a $1 value on it. You're either held to your release, or you're released upon certain restrictions and then that can be reviewed at your next appearance."

Some reformers consider "dangerousness" too subjective of a standard. Heubusch countered that trying to determine if somebody is a flight risk is a judgment call.

Reformers are concerned that allowing judges discretion raises the specter of bias, and studies show the criminal justice system has a history of being biased against people of color.  Heubusch said race should absolutely not be a factor in who is held and who is released but blanket policies by lawmakers who don't live in the communities dealing with crime are not the solution to racism.

"If judges are using race to incarcerate people, then they should be held accountable," Heubusch said. "We should not be changing the system so that more people can be victimized. We are allowing people who commit crimes to remain free due to decisions by lawmakers who are not dealing with these individuals in our communities."

The officers know the current bail scheme is not helping local communities, they said, because they see it every day.

"You really have to explain to the folks that are there complaining about what's going on in their neighborhood, that we can only go so far," Heubusch said. "The reason this person is not locked up is not because of me. It's not because of the judge. It's because of the state laws that say they can't be locked up. It's because of the state laws that say they can't be evicted from that apartment. It's because of the state law. You know, it's very difficult to explain that to somebody who really just wants to see their neighborhood get better."

Photo by Howard Owens. Chief Shawn Heubusch, Det. James Defreze, and Sgt. Christopher Lindsay

Press release:

Congresswoman Claudia Tenney (NY-24) today joined the entire New York Republican delegation in introducing the Stop Enabling Repeat Violence and Endangering (SERVE) Our Communities Act.

Since taking effect in 2020, New York State’s bail reform has eliminated cash bail and expanded pre-trial release for a variety of misdemeanor and felony charges, creating a revolving door that keeps criminals on our streets.

 This bill provides an incentive for states like New York to adopt policies that hold repeat offenders accountable and bolster public safety. Specifically, the SERVE Our Communities Act would authorize $10 million in anti-recidivism grant funding from the Department of Justice for states that have laws directing courts to consider dangerousness when determining bail or pretrial release. To receive grant money, states with these laws must also take steps to hire and retain law enforcement or administer a public awareness campaign that combats anti-police sentiment and improves community-police relations.

 “New York’s radical left cashless bail reform has been a disaster. The SERVE Act works to hold repeat offenders accountable and support our brave men and women who risk their lives to ensure our communities are safe. We must end the continuous cycle of ‘defund the police’ and ‘catch and release’ policies. I’m honored to join my fellow New York Republicans in reintroducing this vital piece of legislation and look forward to real improvement in our justice system,” Congresswoman Claudia Tenney said.

Tenney was joined by Representatives Elise Stefanik (NY-21), Andrew Garbarino (NY-02), Nicole Malliotakis (NY-11), Nicholas LaLota (NY-01), George Santos (NY-03), Anthony D’Esposito (NY-04), Mike Lawler (NY-17), Marc Molinaro (NY-19), Brandon Williams (NY-22), and Nick Langworthy (NY-23) in introducing this bill.

Press release:

Congressman Chris Jacobs (NY-27) sent the following letter to Governor Hochul on Friday, October 21st calling for her to take immediate action to amend the state's bail reform laws following the recent murder of Keaira Hudson earlier this month.

Dear Governor Hochul,

I write to express my ongoing concerns about the flawed and failed bail reform laws which were passed in this state and signed into law by your predecessor in January 2020. Violent crime committed by repeat offenders in New York State is at now epidemic proportions, especially with such crimes as domestic abuse, which put women and children in our communities at grave risk. I implore you to immediately call the legislature into emergency session to make the necessary reforms to this failed law to ensure public safety for all New Yorkers.

Just last week in Buffalo, NY – our shared hometown – a mother of three children was murdered by her estranged husband who was released on his own recognizance without bail, despite being brought in on domestic violence-related charges. This murder is yet another case of preventable death in our state.

It is unacceptable that a man with a record of violence and domestic abuse, one who had been recorded just days before beating his wife in their home and who was arrested on multiple domestic violence-related charges, could be released on his own recognizance because his charges were deemed “bail ineligible.” Numerous studies have shown domestic violence incidents are not isolated, and escalation is highly probable. According to a 2016 study, 10 to 18 percent of those arrested for domestic violence are arrested again within six months, 15 to 30 percent face a second arrest within 28 months, and up to 60 percent are rearrested within 10 years. Had the judge been afforded judicial discretion in this case, this man would have not been released, and a life may have been saved.

This is one of many instances of a police officer making an arrest for a serious crime only to have that offender back in the community committing more violence. In August 2022, New York City Mayor Eric Adams released a study detailing how a group of career criminals has accumulated hundreds of arrests yet are still roaming the streets, free to commit additional crimes, due to our failed “bail reform” laws. Your office’s defense that this problem was fixed or that these incidents are not data, but rather anecdotal evidence, disregards the countless families whose lives have been upended by violent crime committed by offenders who would otherwise be behind bars.

Our Erie County Democratic District Attorney John J. Flynn said after this needless murder, “This could easily be solved with one sentence in the bail law.” That one sentence would provide judges with discretion to consider “dangerousness” when determining bail.

We have a serious problem in New York State, and there is an immediate need for reform to our failed bail laws. I implore you to call an immediate special session of our legislature to first address the need for increased judicial discretion to limit the release of individuals who are arrested with domestic violence charges; and second, to reform the entire law to give judges the authority they previously had, and now desperately need, to keep dangerous individuals in custody. No family should have to suffer the pain of losing a loved one to a violent criminal who was set free under your failed system.

Thank you for your time and attention to this matter. I look forward to your response.

Press release:

Assemblyman Steve Hawley (R,C,I-Batavia) is renewing his call to restore judicial discretion by rolling back the state’s bail reform law following a series of violent incidents that occurred in the state last week, including the shooting of two Rochester Police Department officers and the attempted stabbing of gubernatorial candidate and Congressman Lee Zeldin (NY-1). 

Hawley was especially concerned by news that Zeldin’s attacker was released from custody following the assault due to the state’s bail reform law, which considers assault in the 2nd degree, the crime Zeldin’s assailant was charged with, to be a non-violent felony. While the suspect would later be arrested under a federal charge for assaulting a member of Congress using a dangerous weapon, Hawley is deeply troubled by the fact that in the absence of federal action, state law would allow the attacker to continue walking freely today.

“Horrific incidents like these seem to be happening more and more often in our state,” said Hawley. “This isn’t normal, and we cannot continue to allow bail reform to tie the hands of our judges and further erode respect for laws and law enforcement. Harmful actions must have consequences, and bail reform has been letting dangerous individuals get away with far too much for far too long. We cannot allow regular violence against our people, our leaders, and our law enforcement to be accepted as a fact of life in New York, because people deserve to feel safe in the communities they call home.”

Press release:

Assemblyman Steve Hawley (R,C,I-Batavia) joined his colleagues from the Senate and Assembly Minorities in calling on Gov. Hochul and the legislative Majority to amend the state’s bail reform law, seeking to restore judicial discretion that would empower judges to keep criminals they know to be dangerous off of our streets. Hawley has spoken out against the danger this law poses to communities since it was first passed in 2019, horrified by reports that have emerged throughout the state of violent acts being perpetrated by offenders released, sometimes repeatedly, due to bail reform.

“So long as innocent people continue to get hurt by those who should not be walking free in our neighborhoods, I will continue to demand the restoration of the discretion that was taken away from our judges in 2019,” said Hawley. “As we now work to pass our state’s budget, I feel we have a real opportunity to restore order and save lives. Gov. Hochul’s proposed changes to the law may be a good start, but when we’re talking about matters of literal life and death, we can’t afford to do any less than finally fix this law once and for all to protect our communities.”

When reporters for a national publication focused on justice system reform looked for a county to illuminate the changes in jail population due to pandemic-related fluctuations, they settled on Genesee County and an inmate they thought illustrated the shifting priorities of the system.

The selection of Matthew Reed to help tell the story of a person who might have been mistreated by the system drew attention locally.  

Reed's name is familiar to anybody who regularly pays attention to published arrest reports.

In this case, Reed was highlighted for his conviction on a petty larceny charge -- he stole, as the story noted, $63 in bedsheets from Target. His example was perhaps colorful because his sentencing was delayed for months because of the closure of the Town of Batavia court during the pandemic. When he was eventually sentenced by Town Justice Andrew Young in May he was ordered to serve six months in the Genesee County Jail. (With good behavior, he should be out in about a month).

Reed told reporter Beth Schwartzapfel of The Marshal Project he thought the sentence under the circumstances was unfair.

Reed doesn’t understand the point of sending him to jail now, only further destabilizing his life. “They could have at least offered me drug court or some type of rehab or something,” he said in an interview from the Genesee County Jail last week.

While it's true Reed wasn't offered an opportunity for drug court or rehab, in Genesee County -- at least -- it's up to a defendant's attorney to ask the court to consider those options prior to sentencing, something Reed said his attorney didn't do even though he asked him to make that request.  Reed's attorney, Michael Guarino, told The Batavian after a recent court appearance on another matter that he did make that request, and it was rejected by the DA's office.

The Marshall Project story leaves the impression that stealing some bedsheets was Reed's only crime and he was given a harsh sentence after being left in limbo for months while awaiting his sentence.

That isn't the whole story, however.  In October 2020, Reed also admitted to a criminal charge of bail jumping in the third degree.  He was sentenced in May on both charges.  

While Young didn't give a reason for his sentence of six months for Reed, according to a recording of the proceeding obtained by The Batavian from the Town of Batavia Court, Young was made aware of the 38-year-old Batavia resident's prior criminal history, including multiple failures to appear and parole and probation revocations. 

These issues came up because Reed was requesting a delay in his sentencing over concern he wanted to collect one more disability check before going to jail so he could have some money on his books. This fact isn't mentioned in the Marshall Project story.

Assistant District Attorney Kaitlynn Schmit objected to the delay out of concern Reed wouldn't make a future court appearance.  She also brought to Young's attention a letter Reed had sent the court earlier asking that his case be expedited.  He was distressed by the COVID-related delay in his sentencing. 

While Reed's criminal history as an adult is lengthy, the prior arrests are all for relatively minor offenses, such as trespassing, harassment, and disorderly conduct.  His sentences over the years have included time in jail, community service, fines and probation. His longest sentence appears to have been 365 days in 2008 on a scheme to defraud conviction. 

Reached via email, Schwartzapfel said none of that -- not even the bail jumping charge included in his May sentence -- was relevant to the story she was writing.

The story's thesis is captured in the article's 28th paragraph:

The pandemic underscored what reform advocates have been saying for years: Cramped and filthy jails are the wrong place for most people who have been arrested.

In an email to The Batavian, Schwartzapfel wrote: 

To answer your questions, yes of course I did a criminal history search on Reed, and I knew he had also been charged with bail jumping, which is a very scary-sounding way of saying, he missed a court date. I could have included that, as well as the list of other priors (almost all years-old petit larcenies), but it wasn't really relevant to the point, which was, he stayed out of jail during the pandemic when he would have otherwise gone to jail; and now, months later, he's serving a delayed sentence.

While ADA Schmit is on leave, The Batavian reached out to District Attorney Lawrence Friedman for background on the case and the policies of his office on cases like this.  Asked about Schwartzapfel's characterization of her story, he said:

“Missed a court date” is a very nice sounding way of saying “bail jumping”.

Regardless of how old his priors are, they still factor in the determination as to what is an appropriate sentence.

Leaving out any other charge that was pending against him certainly misleads the reader about the nature of Reed's sentence, especially bail jumping.

I can’t understand the logic behind the contention that, because he hadn't been sentenced for so long, he shouldn't have been sent to jail.

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AUTHOR DISCLOSURE: I first met Matthew Reed years ago while outside of our former downtown office and he asked me for money.  I gave him money then and two or three times in the next couple of weeks when he asked for money, usually with some story about his disability check being late or the funds not being available to pay his rent or needing money for food.  After three or four times of this, I told him I couldn't give him any more money.  Eventually, he stopped asking for money, including in the past year when I would see him almost daily in the area Ellicott Street and Liberty Street.

---

In the story, Schwartzapfel writes:

In the Genesee County Jail in New York, where Reed recently began a six-month sentence for petit larceny, there were, for a time, only 35 people jailed, down from 90 before the pandemic, according to data compiled by the Vera Institute. Defendants had court dates pushed off, and judges went to extra lengths to allow people to wait at home rather than in jail. (New York’s bail reform law also went into effect in early 2020 and reduced jail populations even further.) By March, there were 54 people jailed in the county lockup.

The numbers and actual events in 2019 through June of this year tell a more complex story, however.

It's true that prior to the pandemic, the Genesee County Jail inmate population did hit 90, and even higher at times, but the reduction in the jail population initially had nothing to do with the pandemic and the data doesn't suggest the pandemic had much impact on the inmate population other than delaying inevitable criminal convictions.  

The average number of inmates -- convicted and being held pre-sentence -- rather than "creep up" actually declined from April through June (The Marshall Project story was published in early June).

Long before any local judge had heard the term COVID-19, they were starting to obey a directive from the state court system to begin implementing bail reform.  The Assembly and Senate passed the new limits on bail for criminal defendants in the summer of 2019 and even though the law wouldn't officially take effect until Jan. 1, 2020, judges and town justices were directed to take the new guidelines into consideration when deciding on bail for newly arrested defendants.  Defense attorneys were well aware of this directive and were sure to remind judges of the new guidelines at every opportunity. 

The Genesee County Jail population started dropping around August 2019 when there were 85 inmates in the jail.  By December, that average daily count had dropped to 55.  In February of 2020, when the novel coronavirus was still a distant threat, the local jail population fell to 37 and would remain at or about that level throughout the regional height of the pandemic.

In December 2020, when the total new number of COVID-19 cases in Genesee County peaked on Christmas Eve at 101, the average daily number of inmates hit its highest number since the beginning of the year, 42.  As the number of new cases locally began to drop and more people were out and about, the average daily population of the jail did start to increase, hitting a total of 55 in April. 

March and April were the first months in the previous 10 when more than 300 crimes were reported in Genesee County in a single month.

The drop in crime in 2020 could be a factor -- as some local officials think --  of police reluctance to interact with people unless absolutely necessary.  But, perhaps, a lot of would-be criminals were equally reluctant to interact with other people, meaning fewer victims.  Or with less activity in the community, there were just fewer opportunities to do something wrong.  We'll never know for sure but the fact remains, the lower the number of crimes reported, the fewer people arrested, the fewer people held in jail (with or without bail reform), and the fewer people convicted of crimes.

The other factor was for much of 2020, most courts in the county were closed. That created a backlog of arraignments, plea agreements, trials, and sentencing. 

"We're still pushing to sentence people convicted from more than a year ago," said Friedman. "If you think about what happened here, no courts, no grand jury for four months last year, we're playing catch up."

One tangential result of the delay in court cases, Friedman said, is it is much harder to get defendants to accept a plea.  Why accept a plea, he noted, when you know the court calendar is jammed and you can put off going to jail just waiting for your case to get called before a judge?

Fewer people accepting pleas means fewer people in jail.

It's Schwartzapfel contention that she didn't intend to single out Genesee County as treating convicted criminals more harshly but to use Genesee County as an example of a national trend.

"I intended to use it as a county that was very much in step with how most other counties are handling jail populations post-pandemic," Schwartzapfel said.

This seems to indicate, then, that other counties nationally are not locking away many convicted criminals, which is counter to the narrative of the Marshall Project story, or, as the local data indicates, Genesee doesn't fit the national trend and wasn't a good example to use in the story.

The number of sentenced inmates being held in the Genesee County Jail dropped precipitously in 2020 and has remained relatively low. The highest average daily count of sentenced inmates in the Genesee County Jail in 2021 peaked at 11 in March, not even half of the lowest numbers of 2019.

The delays in sentencing have been the largest contributing factor to the drop in total inmate count locally (Schwartzapfel leaned on total population counts, not the different segments of pre-sentenced and sentenced inmates), so contrary to the impression left by the Marshall Project Story, Genesee County is not rushing to lock up new convicts.

But this isn't the doing of judges, as the Marshall Project Story states, it's the response of defendants that are leading to delayed jail sentences, Friedman said.

"Because of what has happened and we're still very slow in courts, people don't have the same incentive to accept a plea offer," Friedman said. "They think, 'let things go. Time is on my side."

Meanwhile, if your concern is bail reform, something Schwartzapfel said was not a focus of her story but does matter if your goal is to reduce the number of people held in jails, the local crime data offers little assistance to either side of the debate.

Crime dropped dramatically in 2020, the first full year of bail reform, but that almost certainly has more to do with the pandemic than anything else and the pandemic may have masked bail reform's full effect on crime.  On the other hand, crime rates in four of the first six months of 2021 exceed the rate of 2019 but dropped below both 2019 and 2020 in June. So it's a mixed bag with too little data -- and the available data is tainted by other factors -- to lead to any meaningful conclusions.

The headline-grabbing unintended consequence of bail reform is anecdotal, not statistical, such as the repeated arrests of Devon Wright and the frustration of County Court Judge Charles Zambito at his inability to hold him, legally, in jail.

One clear result of bail reform, Friedman said, is, again, people are less likely to accept a plea offer.

"If I'm out on the street, why should I go in and plead guilty and go to jail," Friedman said. "When people are already in jail, they're more likely to say, 'Let's get this done.'"

The other downside of bail reform, according to Kevin Finnell, Friedman's first assistant, is that when defendants don't show up for court, judges can't issue warrants like they used to. They first have to reschedule the hearing and give the defendant up to another month to appear.

Since judges started implementing bail reform, the number of people held in jail before sentencing has been cut roughly in half, if not less.  There are still 30 to 40 people a month held in jail who have yet to be convicted of the crime that led to their confinement.  Bail reform isn't benefiting as many defendants as the public seems to believe.

Friedman has a sense that there are at least some defendants who, because of bail reform, have used the opportunity to re-offend, and that concerns him.

"Anecdotally, we all know of cases involving people who have been on the street who wouldn't have been otherwise and they continue to commit criminal offenses," Friedman said. "I can’t give you statistics or how many would have been locked up before bail reform. But I don't think you can say, 'Well, people who have been released, they're not committing crimes anymore because obviously, that's not the case."

---

 

Press release:

Assemblyman Steve Hawley today slammed the governor’s declaration of a “statewide disaster emergency” regarding gun violence in the state. Within the governor’s executive order, he unilaterally suspends numerous laws while allocating $138.7 million toward programs he believes will reduce gun violence.

“This emergency declaration is yet another instance of the governor going above our heads in the Legislature to haphazardly expend funds aimed to try and solve the wrong root problem,” Hawley said. “The reason for the rise in crime as of late is no mystery, and until the governor admits bail reform was a failed experiment with deadly consequences, I fear the terrible violence in our communities will persist.

"Our constitutional freedom to own guns isn’t the problem that’s causing this violence, it’s the dangerous revolving-door the governor has created in our penal system that’s giving dangerous individuals more opportunities than ever to harm the innocent, or victims of their previous crimes.”

​Hawley for months has called for the rollback of bail reform laws, which limits a judge’s ability to use their discretion to issue bail to those they know to be dangerous. He argues that this law has created a revolving door for dangerous criminals, who have often been released back into the public after being arrested following the implementation of bail reform. These criminals often reoffend and cause further violence in the communities they’re released into.

With Assemblyman Steve Hawley already weighing in on her push to get New York State lawmakers to change the current bail rules and regulations, City Council Member Rose Mary Christian is hopeful that other municipalities will act as well.

Hawley penned a letter dated June 24 in response to hearing Christian’s concerns about what he writes, “the disastrous and dangerous 2019 Bail Reform” (that puts strict limits on the use of cash bail and pretrial detention).

The assemblyman’s letter points to a plan introduced by the Minority Conference to help combat the recent rise in violent crime across the state, and outlines seven areas of proposed legislation to counteract the 2019 Bail Reform act. The letter was entered into Monday night’s City Council meeting proceedings with City Clerk Heidi Parker reading the 14-paragraph statement aloud.

At Council’s meeting on June 14, Christian requested that the city draft a letter requesting a change in the bail reform laws – and her colleagues agreed – and sending it to state representatives in Albany.

Last night, the board reviewed a letter written by City Manager Rachael Tabelski, accepting a revision of the third paragraph to read:

“We commend the Legislature’s efforts to roll back some of the original reforms that were passed last year, such as allowing judges to set bail for more criminal charges that had eliminated bail. We respectfully request that the Legislature consider adding more crimes in which judges have discretion to set bail, including crimes against police officers, firemen and sexual assaults and burglary. We also support restoring bail for any crime involving the use of a gun.”

Christian was pleased with the changes, noting that the letter “has got some teeth in it now.”

“By us passing this – and not just by one person, not by just me but this whole board – is very important and it will show some credence to the fact that we really mean business and maybe other councils, maybe other towns, will follow and we might be able to change this law now,” she said.

It also was suggested to send the letter to Genesee Association of Municipalities in anticipation of it being sent to all Genesee County towns and villages.

Previously: City manager drafts letter from Council asking New York State lawmakers to 'revisit' bail reform laws

Submitted image and press release:

Assemblyman Steve Hawley has reaffirmed his commitment to supporting law enforcement after participating in a Zoom press conference led by Assembly Minority Leader Will Barclay.

On a Zoom call this morning, Barclay reaffirmed the entire Conference’s support for law enforcement members across the state. Hawley wants it to be known that he is in full agreement.

“The ridicule and disrespect our law enforcement officials have received in the wake of George Floyd’s murder are unacceptable,” Hawley said. “I have said time and again I am all for peaceful protests, and there are points the protestors are making that are well met.

"But we need to recognize that for true change to happen, we need to give those in the system a chance to work with their communities and adapt to the needs of their citizens. Bail reform doesn’t make law enforcement jobs easier, and neither does the repeal of 50-A. These officers need our support to make the change we want to see from them.”

Barclay was joined on his Zoom call by New York State Sheriff’s Association President and Washington County Sheriff Jeffrey J. Murphy, New York State Association of Chiefs of Police President and Town of Greece Police Chief Patrick D. Phelan, Rensselaer County District Attorney Mary Pat Donnelly, Fulton County Sheriff Richard Giardino, along with Hawley himself.

Each participant shared their perspective on the changing nature of law enforcement in the wake of George Floyd’s murder, and expressed their willingness to work with local communities to improve, while also sharing the struggles that come with the job of law enforcement.

Press release:

Assemblyman Steve Hawley has called on Gov. Cuomo to consider changing his position on bail reform in the wake of mass looting and riots following the tragic murder of George Floyd in Minneapolis.

Hawley’s first and foremost goal is to ensure law-abiding citizens have their livelihoods protected during this period when bad actors are taking advantage of thinly stretched law enforcement and the chaos that has ensued. 

“As someone who truly believes in the power of the U.S. Constitution and the rights it affords its citizens, I want to make it clear that any peaceful protestor has my full support; that is their right as an American,” Hawley said.

“What we are seeing is a large sect of criminals taking advantage of this situation for their own selfish gains to abuse the situation and sow seeds of anarchy and dissent, and they must be held accountable for their actions.”

“I am calling on Gov. Cuomo to consider a more aggressive and punitive response to these looters and rioters who are causing the destruction of our state,” Hawley said. “Because of current bail reform laws, these criminals are arrested and then immediately released back on the streets to continue their unlawful behavior.

"I appreciate our law enforcement who are working to contain these looters and rioters, and restoring peace and order. However, these officers are handicapped by the bail reform laws, as they create a continuous cycle where these criminals get arrested and released again and again. That needs to change during this period of unrest.”

Photo from left: Assemblyman Mark Johns, Assemblyman Steve Hawley, Assemblyman Peter Lawrence, Assemblyman Brian Manktelow and Assemblywoman Marjorie Byrnes

Submitted photo and information from a press release:

At a press conference held this morning in Rochester, lawmakers expressed serious concerns with the new criminal justice requirements.

The members also discussed their recently issued report on the new reforms, which provides an overview of the reforms that were passed in 2019, the perceived problems with the new laws and solutions that should have been considered in a more deliberate process.

The reforms were portrayed as a way to improve bail procedures for low-level, non-violent offenders. In reality, they have literally turned into a get-out-of-jail-free card for dangerous individuals.

“In the state of New York, we changed the adage from ‘crime doesn’t pay’ to ‘crime does pay,” said Assemblyman Steve Hawley (R,C,I-Batavia). “We are losing businesses and citizens at an alarming rate, including 77,000 residents last year and a million in the last decade. How many more reasons do we need to give New Yorkers to leave? We need to repeal this law immediately. Let’s stop coddling criminals.”

For months prior to the implementation, law-enforcement professionals, judges, district attorneys and members of the Assembly Minority warned state officials of the enormous challenges, unintended consequences and public safety threats. Unfortunately, those calls now are not merely warning of potential danger, they are urgently seeking immediate action needed to keep people safe.

“The District Attorneys Association of the State of New York and I have supported innovative and reasonable criminal justice reform for years,” said Monroe County District Attorney Sandra Doorley. “Unfortunately, the New York State Legislature did not take the views of prosecutors or law enforcement into consideration when they passed this legislation.

"As law enforcement, it is our responsibility to prioritize public safety. Giving judges discretion to review dangerousness as a consideration for bail, and extending the discovery timeline would promote a safer community while helping to uphold fairness for both defendants and victims in the criminal justice system."

"We need to add reasonableness to the bail reform law,” said Gates Police Chief James VanBrederode.

Information from a press release:

Assemblyman Steve Hawley is in Rochester this morning at the oldest home in that city -- the Ebenezer Watts Building. He is with victims impacted by the new criminal justice reforms, and law enforcement professionals and his colleagues from the Minority Conference.

They are gathered to call for Assembly Democrats to address the failing bail reforms that recently went effect into last month.

The members will also discuss their recently issued report "Criminal Justice Reform: Addressing the Issues with Bail and Discovery Reforms."

It provides an overview of the reforms that were passed in 2019, the perceived problems with the new laws, and solutions that should have been considered in a more deliberate process.

Also scheduled to attend are:

Assemblyman Peter Lawrence (R,C,I-Greece)

Assemblyman Mark Johns (R,C,I,Ref-Webster)

Assemblywoman Marjorie Byrnes (R,C-Caledonia)

Assemblyman Brian Manktelow (R,C,I,Ref-Lyons)

Senator Joseph E. Robach (R,C,IP-56th Senate District)

Senator Rich Funke (R,C,IP-55th Senate District)

Monroe County District Attorney Sandra Doorley

Ontario County District Attorney James B. Ritts

Livingston County Sheriff Thomas J. Dougherty

Monroe County Undersheriff Korey K. Brown

Brockport Chief of Police Mark T. Cuzzupoli

Gates Chief of Police James VanBrederode

Ogden Chief of Police Christopher Mears

Greece Deputy Chief of Police Andrew Forsythe

Press release from Senator Mike Ranzenhofer:

As we continue to debate the new cashless bail law, I have received several questions regarding what specific changes took place and what crimes are no longer eligible for bail. (See list below.)

According to some estimates, approximately 90 percent of all crimes are no longer eligible for bail. Supporters note that it is necessary to address inequities in our criminal justice system and that the vast majority of offenders are not being accused of violent crimes.

As I have stated several times, there were serious concerns with certain aspects of our criminal justice system. I strongly believe that those accused of crimes should receive a speedy trial, as is mandated by the Constitution. The accused should not be forced to sit in jail for months awaiting trials and hearings over minor offenses because they cannot afford to pay a relatively small amount of bail. However, the answer should be investing in local court systems, not simply letting dangerous offenders run free.

Perhaps the new law’s biggest flaw is removing judicial discretion to consider “dangerousness” when determining bail. Judges must also opt for the least restrictive pretrial condition. Prohibiting bail and mandating that an offender be released back to the streets, when a judge or law enforcement believes they are a danger to the public is simply outrageous.

In addition, far too many crimes no longer qualify for bail. For your convenience, I have included a list of crimes, compiled by the State District Attorneys Association of crimes that no longer qualify for bail under the 2019 Criminal Justice Laws. I have also included several recent news stories from across the state discussing the impact that these laws are having on communities.

Throughout my time in government, I have never seen an issue with such universal, bipartisan calls for reform, across every region of the state. This speaks volumes to me about the real need for change.

Sincerely, 

Mike Ranzenhofer

State Senator -- 61st District

Offenses that no longer qualify for bail in New York State

Source: the District Attorneys Association of the State of New York

• Assault in the third degree
• Aggravated vehicular assault
• Aggravated assault upon a person less than eleven years old
• Criminally negligent homicide
• Aggravated vehicular homicide
• Manslaughter in the second degree
• Unlawful imprisonment in the first degree
• Coercion in the first degree
• Arson in the third and fourth degree
• Grand larceny in the first degree
• Criminal possession of a weapon on school grounds or criminal possession of a firearm
• Criminal possession of a controlled substance in the first and second degree
• Criminal sale of a controlled substance in the first and second degree
• Criminal sale of a controlled substance in or near school grounds
• Specified felony drug offenses involving the use of children, including the use of a child to commit a controlled substance offense and criminal sale of a controlled substance to a child
• Criminal solicitation in the first degree and criminal facilitation in the first degree
• Money laundering in support of terrorism in the third and fourth degree
• Making a terroristic threat
• Patronizing a person for prostitution in a school zone
• Promoting an obscene sexual performance by a child
• Possessing an obscene sexual performance by a child
• Promoting a sexual performance by a child
• Failure to register as a sex offender
• Obstructing governmental administration in the first and second degree
• Obstructing governmental administration by means of a self-defense spray device
• Bribery in the first degree
• Bribe giving for public office
• Bribe receiving in the first degree
• Promoting prison contraband in the first and second degree
• Resisting arrest
• Hindering prosecution
• Tampering with a juror and tampering with physical evidence
• Aggravated harassment in the first degree
• Directing a laser at an aircraft in the first degree
• Criminal possession of a weapon in the fourth degree
• Criminal sale of a firearm to a minor
• Enterprise corruption and money laundering in the first degree
• Aggravated cruelty to animals, overdriving, torturing and injuring animals
• Failure to provide proper sustenance
• Animal fighting

Bail Changes in the News

https://nystateofpolitics.com/state-of-politics/new-york/ny-state-of-politics/2020/01/24/q-and-a--5-questions-surrounding-new-york-s-cash-bail-law

 https://www.wkbw.com/news/local-news/unintended-repercussions-of-bail-reform-in-the-city-of-tonawanda

 https://www.washingtonexaminer.com/news/ny-police-arrest-six-suspects-in-7m-drug-ring-judge-releases-them-without-bail

 https://wben.radio.com/articles/cash-bail-eliminated-for-people-accused-of-some-crimes

https://buffalonews.com/2019/12/16/state-bail-reform-law-draws-fire-from-local-towns/

 https://www.wamc.org/post/manslaughter-suspect-released-under-nys-criminal-justice-reform

 https://nypost.com/2020/01/13/every-day-brings-a-new-poster-boy-for-nys-disastrous-new-bail-law/

Submitted photo and press release:

Assemblyman Steve Hawley joined law enforcement professionals, lawmakers and family members of crime victims at a press conference today in Albany held by Assembly Minority Leader Will Barclay calling for a repeal of dangerous bail reform laws that are leading to serial criminals being released before trial. 

Joining lawmakers at the press conference today was Jennifer Payne, mother of Sarah Tombs who was shot and killed in April by her live-in boyfriend. The individual was released from custody last week under the new bail reform laws.

Also in attendance at the press conference was Sheila Harris, cousin of Maria “Rosie” Osai, a 35-year-old mother of three who was struck and killed by an unlicensed, hit-and-run driver in Rockland County on Christmas Eve. The driver was immediately released without bail pursuant to the new law.  

“Bail reform has already become a public safety epidemic with a new, dangerous criminal released back out onto the streets seemingly each day,” Hawley said. “New York City politicians who passed this law are directly responsible for tying our judges’ hands and restricting their ability to lock up career criminals with long rap sheets and that has dire consequences. I am calling on legislative leaders to join us in making much-needed changes to bail reform immediately before any more damage is done.”