Top court official says NY judges need discretion over bail

The Associated PressIn this Jan. 8, 2020, file photo, New York Gov. Andrew Cuomo delivers his State of the State address at the Empire State Plaza Convention Center, in Albany, N.Y. On Wednesday, Cuomo said he welcomed a new plan advanced by some Senate Democrats to stop cash bail but to let judges confine those deemed to be potentially dangerous. 

ALBANY -- The clamor to restore discretion to judges so they can lock up potentially dangerous defendants intensified Wednesday, with the official overseeing the state court system backing the idea.

Chief Administrative Judge Lawrence Marks, emphasizing he was stating his own opinion, said while bail is "inherently discriminatory against poor people," judges need to be empowered to jail individuals deemed to pose a threat to community safety.

"You can't eliminate bail entirely unless you let judges factor in risk to public safety," Marks told lawmakers at a hearing on Gov. Andrew Cuomo's proposed $178 billion state budget.

Marks also advocated for the use of electronic monitors as a way to get defendants to cooperate with court orders. He noted New York is now the only state where judges cannot consider risk in release decisions at arraignments.

Democrats in both chambers of the Legislature embraced a host of criminal justice reforms last year, the most controversial being a move to sharply reduce the use of bail.

But some senators and Assembly members who voted for the legislation have since shifted their views following an outcry from police executives and prosecutors who argue the measure went too far in weakening the ability of judges to evaluate the risk posed by the defendants before them.

Cuomo said he welcomed a new plan advanced by some Senate Democrats to stop cash bail but to let judges confine those deemed to be potentially dangerous.

"When you make a change like that, you have to watch what the effects are, right?" he said. "There are complex systems. If you change one part, then you step back and you see what the effect is and you adjust accordingly.”

But the new plan for more bail changes immediately landed in choppy waters, with Assembly Speaker Carl Heastie adamant that not enough time has passed to assess the law that took effect January 1.

The proposal was also slapped by the Legal Aid Society and other groups providing legal help to low-income people.

“If enacted, this proposal would dramatically increase the number of people languishing in jail who are presumed innocent," the groups said in a statement.

Meanwhile, the population of pre-trial detainees at county jails across the state has dipped dramatically since the new bail law allowed defendants charged with misdemeanors and some low-level felonies to be released with appearance tickets.

Michael Green, commissioner of the state Division of Criminal Justice Serices, said the jails now hold fewer than 15,000 prisoners awaiting trial, down from some 24,000 since the law took effect.

Lawmakers were also advised by representatives of the District Attorneys Association of the State of New York that the criminal justice reforms -- including new rules that evidence and witness statements be quickly shared with defense lawyers -- are greatly increasing administrative costs for the prosecutors.

William Fitzpatrick, the veteran Onondaga district attorney, said some estimates suggest district attorneys will need as much as $400 million in new funding to carry out the mandates in the updated discovery rules for criminal prosecutions.

Another measure advanced by Cuomo in his public protection package of legislation is a proposal to close an unspecified number of prisons.

Registering strong opposition to that idea were Assemblyman Billy Jones, D-Chateaugay, and Michael Powers, president of New York State Correctional Officers Police Benevolent Association.

Jones and Powers said corrections officers would be in a far safer work environment if the state simply moved to curtail the double bunking of inmates in medium-security prisons. They also called for a maximum of 50 inmates in each dormitory.

"The practice of double bunking is irresponsible and outdated," said Jones, a former corrections officer.

Citing declining inmate population, the Cuomo administration closed two prisons last year.

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