Today, Assemblyman Pat Burke (D-South Buffalo) announced his intent to introduce a new iteration of his “Justice for Rachael” legislation that will allow criminal prosecutors to request a dangerousness hearing to determine whether or not defendants should be released pre-trial. This past legislative session, the New York State legislature passed reforms to the deeply flawed bail system. Those reforms eliminated cash bail and provided for the release of individuals charged with low level misdemeanor and non-violent offenses.

“Simply put, the bail system has been used to keep poor people in pre-trial detention while allowing for the pre-trial release of potentially dangerous criminals who have financial means, as we saw in the tragic case of Rachael Wierzbicki.” said Assemblyman Burke.

In 2018, 22-year-old Rachael Wierzbicki was shot and killed in South Buffalo. Rachael’s accused killer was released on bail shortly after he was arrested. “Several factors should be included to determine pre-trial detention or release, but the amount of money one possesses should not be one of them,” said Burke.

“When my daughter Rachael’s [accused] murderer was released on bail, we went into panic mode and were completely devastated and fearful,” said Lauri Wierzbicki. “My daughter was no longer with us and an evil individual was free to roam the streets. It’s not about flight risk, it’s not about money, it’s about not putting a dangerous individual who does not value human life back into the community. Our family and friends are very proud of Patrick Burke for moving forward with this courageous legislation so no other family has to go through the terror we went through.”

“Without this legislation more lives will be at risk, just like Rachael’s,” added Mary Murphy, C.E.O. of the Family Justice Center of Erie County. “If there’s anything we learned from her devastating case, it’s the fact domestic violence perpetrators will stop at nothing, up to and including murder, to maintain power and control over their victims. Current laws give known abusers opportunity to continue the hellish treatment they unleash every day on their partners and ex-partners.”

Under current New York law, a judge can only detain an individual if the judge believes the individual poses a risk of flight. Assemblyman Burke wants to change that to allow the prosecution to request a dangerousness hearing if they believe a defendant poses a threat to the safety of others. He is introducing legislation to allow for pre-trial detention where an individual is charged with a violent crime and the facts show by clear and convincing evidence that release of the individual poses a threat to the safety of others.

Other jurisdictions, including the State of Massachusetts and the federal criminal code, allow for pre-trial detention in such circumstances. Both federal law and Massachusetts state law allow a judge to order a defendant detained pending trial if, after a hearing, the judge finds that no condition or combination of conditions will reasonably assure the safety of the community. Under Burke’s legislation, judges in New York State would be given that same discretion.