To understand what is really going on, we need to look
beyond the fear-mongering. As of January first, individuals charged with most
misdemeanor offenses and non-violent felonies will no longer be subject to
pre-trial incarceration when they are unable to post bail. Essentially, the
number of people who are charged with crimes and sent to jail upon mere arrest,
before they are convicted of anything, will be greatly reduced. Statewide statistics show that under the
current bail system roughly 65-80% of
the local jail populations are being held pre-conviction at any given time. So,
what the politicians and naysayers are advocating is perpetuation of a system
where people are deprived of their liberty and sent to jail simply because they
have been charged with a crime, and are too poor to post bail. Given that the presumption of innocence is a
bedrock principle of our democracy, this point of view-- that people should be
jailed before conviction-- is particularly disturbing.
Also, often overlooked by those promoting the anti-reform
talking points are two facts about the new legislation. Bail will still be an
available option in cases alleging violence or sex offenses. Secondly, persons
who have financial means have always had the ability to remain at liberty while
their case is pending. It is the poor
who have suffered the consequences of the current bail laws.
I have heard some offer the opinion that this reform is
unnecessary in upstate areas; that somehow the current system works just fine
here. While specific rural issues may differ from those in the urban areas,
this reform is intended to correct abuses statewide. I have worked as a
criminal defense attorney in Allegany County for over 30 years and have seen
countless abuses of discretion under the current system. For example, I have
seen bail set at $10,000 on a charge of aggravated unlicensed operation of a
motor vehicle in the 3rd degree, an unclassified misdemeanor under the vehicle and
traffic law. My office routinely sees clients sent to jail pre-conviction for
very minor offenses. This is done under
the misguided notion that somehow the first appearance in court upon arrest
should subject the defendant to judgment (guilty) and punishment (jail) at the
complete whim of the local justice. All too often, this is how the question of
bail is decided. Unfortunately, the real purpose of bail, to secure the
defendant’s return to court, has not always been the primary concern.
The new legislation is designed to correct these abuses. I
suggest we focus on the facts, rather than listen to the fear-mongering. We should all be proud that New York State
has seen fit to make these legislative changes, and by doing so is moving
toward a fairer and more just process.
Barbara J. Kelley
Allegany County Public Defender
