New York should take its cue from California on bail reform

Bob Capano
Bob Capano
Photo by Stefano Giovannini

Never in a million years did I think that I would ever advocate emulating policies, especially about criminal justice, from California, the main progressive bastion in the country. But, adopting their cash bail changes would be a compromise solution to the current stalemate in Albany over addressing the obvious flaws in our recently implemented bail reform law.

On one side is the progressive left that says one’s ability to pay bail should not determine whether one stays behind bars while awaiting trial. Simply, wealth shouldn’t buy freedom. Therefore, they support no changes to the bail reform law that began on the first of the year.

On the other side is law enforcement, many district attorneys, Republicans, and even some moderate Democrats who say that taking away a judge’s discretion to consider the criminal history of a defendant and their threat to the public is a fatal flaw of the law.

As former NYPD Police Commissioner Ray Kelly told John Catsimatidis on his Cats Roundtable radio show on AM 970 last week, “What the hell were they thinking about in Albany when they crafted this mind-boggling set of limitations on the criminal justice system?” He noted that unlike 47 of the 50 states, judges can’t take into consideration public safety when deciding whether to release or detain a defendant, or set bail.   

Adopting California’s law would address the core issues of both sides. Specifically, in August, 2018 the Golden state became the first state in the nation that passed legislation to completely eliminate cash bail. Instead, defendants will either be detained or released until their court date solely based on a risk assessment algorithm system. It weighs risk to the public, likelihood to return to court, and seriousness of the crime. Those charged with non-violent misdemeanors are automatically released.

These are common sense considerations and would probably find support from those seeking to roll back the current bail reform measures.

Similarly, those refusing to make any changes to New York’s bail law should find solace in the words of California Gov. Jerry Brown, a progressive by any definition. When signing the law he said, “Today, California reforms its bail system so that rich and poor alike are treated fairly.” This should be music to the ears of bail reform supporters refusing to budge because it addresses their main argument of the inequality in the cash bail system.

Therefore, they should jump aboard also to balance public safety with their concern with different outcomes on who is detained and released depending on one’s income. Now, it would be based on one standard set of criteria for all.

For the sake of innocent New Yorkers, Albany doing nothing is not an option. However, it seems for the progressive left plastic bags are a greater threat than violent career criminals being released over and over again to the streets, often before their victims are out of the hospital.

There have already been many examples of this happening, including Tiffany Harris. She already had a long rap sheet when she was arrested for assaulting three Orthodox women in Crown Heights. Harris was released within hours and was arrested again the very next day for assaulting another woman. She was released again and not surprisingly, assaulted another innocent New Yorker.

More recently, Eugene Webb was released last week under the newly imposed bail reforms after being arrested for assaulting a 23-year old woman, knocking her teeth out before assaulting another woman. Significantly, he has a record of missing court dates.

The question begs how many people must be literally assaulted or worse by someone released because of this law before it is enough to spur action by Democrats.

Unfortunately, most people are only spurred when something personally affects them. So, when more New Yorkers and their families are victims of someone released on bail there will then be enough pressure brought to bear on elected officials to act, or to throw them out of office. Indeed, the out of control crime and number of victims during the Dinkins administration is what helped elect Rudy Giuliani as Mayor.

Or, Democrat elected officials like Assembly Speaker Carl Heastie, who says he will hold up any changes to the bail reform law, could be more personally impacted. If their child or spouse was brutally assaulted, like the woman who had her teeth punched out, would they be singing the same tune?

Although California’s law is now on hold until a public referendum later this year, mainly fueled by bail industry, New York can pass a similar measure today as a compromise between bail reform supporters and opponents.

Bob Capano has worked for Brooklyn Republican and Democrat elected officials, and has been an adjunct Professor of Political Science for over 15 years. Follow him on twitter @bobcapano