Buffalo, N.Y. (WBEN) - "The original changes to bail reform were well intended," said Buffalo defense attorney Terry Connors on WBEN Tuesday. "At that time (2019), research showed that dangerous, but wealthy defendants could secure their release. But harmless, poor defendants would have to stay in jail. That's simply unfair. And that's what they tried to change."
The New York State Legislature and then-Governor Andrew Cuomo approved a bail reform law that eliminated cash bail for non violent offenses. "It gave life to the presumption of innocence," said Connors. "Judges were required to release defendants charged with non violent offenses. All misdemeanors were released without bail. It marked a sea change in the legal process."
The changes that took effect in 2020 have been largely criticized legally and politically because they don't give judges all of the tools necessary to evaluate the seriousness of the crime and the risk to the community.
Connors said, on one hand, the reforms have dramatically reduced the cost of pre-trial incarceration. But it has also led to a small increase of defendants being released, and going out and committing another offense, such as the attack last week on Republican candidate for governor of New York, Congressman Lee Zeldin.
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In the first year that New York’s new bail policies took effect, nearly a fifth of all defendants were rearrested for a crime of any kind, and 2% of the total led to a re-arrest for a violent felony, according to the Office of Court Administration.
On May 9 of this year, the state did change bail reform laws, to allow judges more discretion in evaluating whether or not to impose bail or to remand an individual into custody.
"They put in additional criteria," said Connors. "Was there a gun involved? Is it a serious harm crime? Is it an order of protection that may have been violated? Some say it's not enough because the judge is not allowed to evaluate the risk to public safety, and whether the person is a risk of flight or likely to show up in court" he added.
Connors called it a delicate balance between the presumption of innocence and whether or not a person should be detained. "That's where the debate lies."
Retired State Supreme Court Judge Penny Wolfgang said in the case of the attack on Less Zeldin, it was not a qualifying offense to set bail.
"Despite the actions that everybody saw, and despite what might seem violent, it's not listed as a violent offense and the judge had no discretion and no ability to set bail. The judge's hands were tied," added Wolfgang.
David Jakubonis, the man accused of attacking Lee Zeldin, was released on the initial charge against him, but re-arrested on federal charges the following day due to the fact he is a member of congress.
What are some of the things that Judge Wolfgang would have taken into account, if permitted? "I would look at the nature of the act. I would look at the defendant's record. I would look to see if the person had a job (a reason not to flee). Additionally, I would look at his character and mental condition if that was available. There are a lot of factors," said Wolfgang.
Sometimes, the former judge said, you can tell a lot just by looking at the defendant. "Eye contact, body language and their demeanor."
