CNN | 10/1/2020 | Listen

New York's sweeping bail reform was shortsighted

Updated 11:18 AM ET, Fri January 17, 2020

Editor's Note: James A. Gagliano is a CNN law enforcement analyst and retired FBI supervisory special agent. He is also an adjunct assistant professor and doctoral candidate at St. John's University in Queens, New York. Follow him on Twitter: @JamesAGagliano. The views expressed in this commentary are his. Read more opinion on CNN.

(CNN) - Some of the most sweeping and ambitious bail reform legislation in New York state history became codified into law on the first of the year. Criminal justice activists predictably hailed the massive restructuring of the cash bail system -- which was designed to level the playing field for accused who are bail-eligible but may not possess the financial means to secure it.

But the reformed laws prohibit judges from setting a cash bail requirement for a lengthy list of misdemeanors and nonviolent felonies -- to include stalking assaults that do not result in serious injury and even certain incidents related to arson and robbery. Early returns are now in, providing numerous examples -- not abstractions -- of dangerous unintended consequences.

The actual architect of bail-reform initiatives may have been the tragic case of Kalief Browder, who was arrested when he was 16 in 2010 for allegedly stealing a backpack, and subsequently remanded to Rikers Island. A prior vehicle-theft conviction as a minor, along with his indigent family's inability to immediately produce the $900 necessary for bond, resulted in his incomprehensible pretrial detention of three years -- before the charges were ultimately dismissed for lack of evidence. Browder, the subject of a Netflix documentary, struggled to assimilate upon returning home, following long months of solitary confinement and brutalization by some prison guards and fellow inmates. He tragically took his own life on June 6, 2015. He was 22.

Browder's case became a cause célèbre for bail reform efforts, as it encapsulated the issue of cash bail's fundamental unfairness. Wealthy defendants -- who could also pose potential threats to society -- were positioned to essentially buy pretrial release unavailable to those of lesser means. But caution should be urged when considering reflexive overhauls that could be due to outliers -- extreme cases with complex causalities -- which may not be reflective of the system as a whole.

The legitimate concern over the lessons of the Browder case unfortunately devolved into a sweeping change that is far too permissive and dangerous to society.

New York's bail-reform initiative essentially restricts judges and magistrates; limiting discernment and judgment from the bench. A USA Today Network New York survey of the state's 62 counties revealed that the new law would result in an immediate release of 3,800 people held in county jails.

Republican lawmakers and police organizations have ominously warned about the effects of essentially emptying the jails of accused misdemeanor offenders during the pretrial process, as some may continue to pose a danger to the community. The president of the New York City Police Department Patrolmen's Benevolent Association (NYC PBA), Patrick Lynch, told me that "[t]he stories of dangerous criminals being released to reoffend are not 'malfunctions' of the new system -- they are the new system working as designed."

Former NYPD and LAPD Commissioner Bill Bratton professed strong condemnation for the reforms referring to them in a radio interview as "a disgrace."

Some view this as overwrought law enforcement scare tactics. PolitiFact elected to fact-check one of the NYC PBA's more ominous warnings: "Defendants charged with producing, directing or promoting an obscene sexual performance by a child will be arraigned & set free." The claim rated "mostly true," with noted allowances for limited instances whereby bail may be set.

Released January 1 with an appearance ticket for interfering with his court-ordered ignition interlock device, Jordan Randolph already had three prior DWI convictions before his latest alleged drunken-driving episode led to a fatal crash on Sunday that killed Jonathan Flores-Maldonado, a recent SUNY-Buffalo graduate. Maldonado's stepfather, Phillip Beyernheimer, said "[w]e just identified him and his remains, so that he can be released to be cremated and that's all because of a bail reform law," according to CBS2.

As New York state grapples with recent spate of anti-Semitic hate crimes attacks on Orthodox Jews, a Brooklyn woman who was arrested for allegedly slapping three Orthodox women, was released, and then arrested the very next day for allegedly assaulting yet another person. The judge in the case acknowledged that she had to comply with the coming bail reform legislation, and freed Harris in advance of the laws' enactment, saying "...I'm releasing her on consent and also because it will be required under the statute in just a few days."

In Albany, a man originally charged with second degree manslaughter -- no longer an offense that is eligible for bail -- was released earlier this month. Days later, after more evidence was analyzed, he was indicted on a second-degree murder charge for the same death. He has pleaded not guilty to murder charges and was remanded to jail on Wednesday.

In Seneca County, a 34-year-old man was arrested during the law's initial first days on charges of predatory sex assault, rape in the first degree, and endangering the welfare of a child, according to a Seneca County Sheriff's Office press release. The victim was under the age of 13. "The press release said the man's release with supervised electronic home monitoring "was in compliance with the new bail reform laws as the least restrictive non-monetary condition imposed by the court."

In the wake of these incidents, the man who signed the bail reform legislation into law, New York Governor Andrew Cuomo, acknowledged the laws needed to be revisited.

James Skoufis, a Democratic state senator representing New York's 39th district since 2019, voted for the bail reform law, but has publicly acknowledged the laws' frailties. He has become an outspoken advocate for amending the law, attempting to build a coalition in the state senate to debate a complicated amendment to address some of the glitches. When I asked him why he had been a signatory to a bill so obviously fraught with inadequacies, Skoufis highlighted one of the major impediments to voting "clean," single-item bills in legislative bodies: "The vote [was] more complicated. There was no up or down vote on bail reform. It was in an enormous budget bill. In the same bill was all school funding, the property tax cap, STAR [New York State School Tax Relief Program], and lots and lots of other stuff. If the bill was voted down, government would've effectively shut down."

Skoufis highlights the stark choices lawmakers face when voting on omnibus legislation. Any opportunity to push back on obvious areas of concern related to bail reform would have crippled the operating effectiveness of innumerable areas of state and local governments in New York.

There is no doubt that rational reforms should have been a priority in Albany -- and around the nation, as well. But there needs to be additional consultation with police, prosecutors and judges on these alarming results. Consideration needs be given to afford judicial discretion, as applied to each individual case before the bench -- bereft of blanket mandates that leave judges helpless but to comply with some risky restrictions.

But can tweaking the flawed laws make a difference? Rafael A. Mangual, the deputy director of legal policy at the Manhattan Institute for Policy Research, argued in an op-ed that New Jersey has enacted similar reforms, but with a bit more prudence. He highlighted one important distinction where "prosecutors in New Jersey can move to revoke a defendant's release if that defendant is rearrested for a new offense, or if he fails to appear in court. Garden State judges granted more than 1,000 such motions in 2018." But even while crediting New Jersey for a more effective reformation, Mangual notes it remains less than ideal, acknowledging that "[t]he most recent report issued by the state's judiciary shows a not-insignificant increase in the percentage of defendants charged with new offenses while awaiting trial."

Recent criminal justice reform efforts have appeared to enjoy bipartisan agreement. In our current fractious nation, could it be possible to envision a bipartisan consensus amongst lawmakers regarding the immediate need to reform the reforms? The new laws are just over two weeks old. We don't need any additional head-scratching -- or fatal -- examples to make the case.


© 2019 Cable News Network. Turner Broadcasting System, Inc. All Rights Reserved.

Listen to CNN (low-bandwidth usage)

Go to the full CNN experience