DA moving, judges lagging on bail reform

Erie County is ahead of the curve on bail reform.

Changes in the law that take effect January 1 prohibit the imposition of cash bail on defendants charged with misdemeanors and non-violent crimes. But in Erie County, as of November 1, assistant district attorneys cannot ask for bail on those offenses without prior approval from a supervisor.

“Come December first, only I can approve it,” said John Flynn, the Erie County District Attorney. “That’s how we’re phasing it in. Then come January, none of us can ask because the judges cannot do it.”

He added: “Individuals who are charged with low-level offenses, misdemeanors or even non-violent felonies should not be in jail awaiting trial just because they’re poor. The only people who should be in jail awaiting trial are individuals who are a flight risk, a genuine flight risk.”

Despite prosecutors no longer asking for bail, Buffalo City Court judges are still setting it in many instances, which they can do for the time being.

“I don’t want to sound dismissive or condescending, but far be it from us to second guess or Monday morning quarterback the logic or the logistics as to why that judge set bail,” said Chief City Court Craig Hannah.

Public defenders think judges should follow the district attorney’s lead.

“We are stating on the record that, even though the law is not in effect currently, they should be following the spirit of the law,” said Kevin Stadelmaier, Chief Attorney of Buffalo Legal Aid’s Criminal Defense Unit.

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The judicial reluctance has potential consequences. Anyone who is in custody because they cannot post bail on low-level charges — offenses which won’t qualify for bail come the first of the new year — must be released from jail prior to January 1.

As of the beginning of this month, 592 people were held in custody awaiting trial. Around 100 are there on misdemeanor and non-violent felony charges and qualify to be released from the Erie County Holding Center and Erie County Correctional Facility in Alden before January 1. Their continued incarceration would be unlawful.

As long as the judges keep putting bail on these charges, that number is going to increase.

Statewide reform

State lawmakers approved the changes in the bail laws this spring.

Cash bail will be eliminated for misdemeanors and non-violent felonies — more than 400 charges in all. Those crimes range from riding the Metro Rail without a ticket to driving with a suspended license to second-degree burglary and robbery.

“The bottom line is, the bail system in New York, the way it has been set up for many, many years, disproportionately affects people in poverty,” said Stadelmaier, from the public defender’s office. “It has nothing to do with crime, nothing to do with dangerous incidents; it has everything to do with poverty.”

The statewide call for reform came after a 22-year-old Bronx man, Kalief Browder, committed suicide when released from Rikers Island, a jail in New York City. He’d been there three years awaiting trial on charges related to stealing a backpack. A judge put $3,000 bail on him and his family couldn’t afford to pay it. His case got lost in the system.

Bail is intended to ensure someone returns to court. Judges in New York State have nine options for bail, six of which don’t include fronting any money.

Cash bail is an option that’s used quite frequently in Buffalo City Court. A 2018 study by the Partnership for the Public Good found, of the 240 arraignments they tracked, judges imposed cash bail each and every time.

Still imposing bail

Five days this month, Investigative Post observed arraignments of defendants who were in police custody following an arrest.

During the last two weeks in City Court, two judges, James McLeod and Amy Martoche, have presided over arraignments involving defendants held by police.

McLeod chose not to set cash bail in only two of the more than 40 cases on the docket involving misdemeanor and non-violent felony offenses.

In one case, McLeod dismissed charges against a man arrested for fishing without a license. After looking through the defendant’s record, McLeod saw the defendant had eight warrants out for his arrest and set $15,000 bail.

That would be illegal under the new laws.

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Martoche did not impose bail on any of the nine defendants who were in court on misdemeanor and non-violent felony charges on Wednesday.

Martoche released seven people on their own recognizance and two on supervision, a program similar to probation but which runs short-term, from arraignment to sentencing.

Calculating the costs of reform

The Erie County Probation Department, which oversees the release-under-supervision program, increased their proposed 2020 budget from $306,000 to around $700,000 to hire more staff and cover the expected costs associated with the number of people who will be enrolled in the program under the new laws.

While they budgeted for around 1,000 people to be released under supervision next year, Commissioner Brian McLaughlin called it a “conservative guess” and said 19,000 would have qualified this year.

Advocates for the bail reform laws believe fewer people in custody will save the public money. Under the law, misdemeanor cases must be resolved in 90 days, but that can be extended for a number of reasons. With a price tag of $194 a day to keep a person in jail in Erie County, the estimated savings for one person held pretrial on a misdemeanor could be as high as $17,460, provided the case isn’t delayed and the person doesn’t post bail at any point.

Spending any time in jail can have long- and short-term effects: loss of a job, custody of children or a home. Erie County has had more significant issues than that, as 30 people have died while in custody under Sheriff Tim Howard. While that was not motivating factor behind Flynn enacting these changes, he is cognizant of the impacts of being incarcerated.

“The less amount of people that we have in the holding center, especially for individuals who are there for non-violent or misdemeanor offenses, is better,” he said. “There’s been no pushback at all. It’s obviously decreased the population of the whole holding center, and I don’t personally believe the world will end on January 1.”

Calendar blitz

The court system has launched what it’s calling a “calendar blitz,” in which defendants presently held on bail on misdemeanor and non-violent felony charges are being scheduled for another court appearance prior to the end of the year.

The objective is to ensure those defendants are not held in custody come January 1. That would be against the law and subject authorities to possible legal action.

“That would leave a black mark, quite frankly, on all of us,” Flynn said.

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Both Hannah and Andrew Isenberg, who oversees state and local courts in Western New York, said the courts will strive to ensure no defendants fall through the cracks.

“The courts are doing everything they can to ensure that no one is being held unlawfully,” Isenberg said.

But both of them put the responsibility on defense attorneys.

“The onus at the end of the day is on defense counsel to make sure that their client — who is being held, who should not be held — they need to get him in front of a judge,” Isenberg said.

Stadelmaier, of Legal Aid, countered: “If someone is locked up for one day or even one minute longer than they should be, it’ll fall more on them [courts, judges and correctional facility] than it would defense counsel who’s making the arguments to get them out.”