While not directly related to NYS fiscal issues, some of the biggest policies included in this year’s state budget were changes to our state’s criminal justice system. The biggest of those changes was the elimination of cash bail for most crimes other than certain qualifying offenses. The elimination of cash bail has been the rallying cry for many liberal New York City-based interest groups who claim, in some cases correctly, that cash bail discriminates against the poor. While I believe that some reform was necessary, the law that was passed as part of this year’s budget goes too far because it takes discretion away from judges and in the process could endanger law-abiding New Yorkers.

Under previous law, when someone was arrested, they ordinarily would see a judge within 24 hours. At that time, the judge had a number of options on how to proceed. These options included releasing the defendant with a promise that he or she would return for their trial or, if the judge determined that the defendant was so great of a flight risk, the judge could order the defendant detained in prison until a trial verdict or plea deal. The judge could also order the defendant to post bail—which essentially requires a cash payment or bond to the court that would be returned to the defendant or a third party (e.g., a bail bondsmen) if the defendant meets the court’s requirements (e.g., appears for trial). The judge, when setting bail, needed to weigh a variety of factors including the financial resources of the accused and the recommendation of the prosecutors.

Pursuant to the law recently passed in the NYS budget, judges now are required to release the defendant pending trial on their own recognizance unless the defendant is found to pose the risk of flight or stands charged of a qualifying offense—in which case, the judge may sometimes fix bail. If the judge finds that releasing a defendant on his or her own recognizance will not reasonably assure the defendant’s return to court, the judge then must select the least restrictive, non-monetary, condition that will “reasonably” assure the defendants return to court. Non-monetary conditions include having the defendant be in contact with a pretrial services agency, restrictions on travel, placement in pretrial supervision, and electronic monitoring.

What wasn’t included in the legislation was language that would allow a judge to incarcerate a defendant before trial if the judge deems the defendant “dangerous” or a threat to public safety. Under this new law, a judge’s hands are tied when it comes to pre-trial release of a defendant charged with a non-qualifying offense—either release the defendant on his or her own recognizance or release the defendant subject to a least restrictive condition as set forth above. What happens if the defendant is very dangerous? The same rules apply. The Majority politicians who opposed adding that language claim disingenuously that under prior law, a judge couldn’t take in a defendant’s threat to public safety when determining pre-trial release. While true, it is undeniable that under the prior law a judge had a lot more discretion and could order pre-trial detention in certain circumstances albeit not strictly on the dangerousness of the defendant.

Moreover, by taking away a judge’s discretion in determining pre-trial release a tremendous tool has been taken away from prosecutors and law enforcement. Under the prior law, defendants might be incarcerated pre-trial even if they were only charged with relatively minor crimes with the knowledge that more serious crimes against the defendant were being investigated and pursued. Now, the defendant will have to be released. It isn’t a stretch to imagine that there will be a substantial flight risk because the defendant knows that more serious charges will be forthcoming.

Finally, there are significant costs involved with implementing least restrictive non-monetary conditions of release—conditions like pretrial supervision. Unfortunately, but not surprisingly, the state budget contains no additional funding for these costs. While the cost may be secondary to those pushing for cashless bail, if you are the one footing the bill it is just one more unfunded mandate coming from Albany.