There has been a lot of discussion about bail reform.  There has also been a lot of blaming, misinformation and disinformation. However, there are legitimate concerns about public safety that need to be addressed.  The issue is complex and not so simple, hence the long discussion that follows….

A major problem in these discussions is that the conversations are centering on what to do about bail reform and whether we are opposed to or support bail reform.  Lets face it, most people do not have a basic understanding of the criminal justice system except that they want to feel safe and the mischaracterizations over the past  years has left a negative image in individuals minds, accurate or not.  The reality is that we need to look at the bigger picture issue of the criminal justice system and what happens to people who have severe mental health and/or substance use issues when they commit crimes or encounter the criminal justice system.  We also have to discuss the issue of individuals who are intentionally committing crimes because they feel the system has no recourse to stop them.

The conversation should not be focused on what to do about bail reform and whether to go backwards or forward on the same path, but I believe a turn on a new path is necessary once we understand the underlying problems, which is hard work.

Starting with bail reform, what it is, and why I voted for it. I fully understand the importance of the basic principles – No individual should be jailed because they are poor and that everyone is innocent until proven guilty. I stand behind those principles.  In short, with the previous bail system (prior to bail reform), two people commit the same exact crime, one person is wealthy and the other person is poor. The wealthy person can pay bail to stay out of jail, the poor person may not be able to. Any reasonable person agrees, that is not fair. The person who does not have enough money was only there because they cannot afford the bail.  Keep in mind that even though someone may be charged with a crime, they may not necessarily be guilty of a crime. That is why there is a process to make that determination.  Our constitution states this as law of the land.

The unfortunate reality is that recidivism often occurs due to a person suffering from severe mental health and/or substance use disorder issues. Instead of having people sit in a jail like they used to because they could not pay their bail, they are being released without being directed to resources they need to address their underlying issues and in turn may end up committing another crime.

Is the option to just put people back in jails  with the health conditions above unless they can pay bail? I do not think that is the correct nor a humane approach. At the same time, we need to do something because we need to make sure that the public feels and is safe and that we are not releasing people who need help out on the streets for the reasons stated above.

To say that bail reform is a resounding success is not correct because admittedly there is this major gap that needs to be corrected. At the same time the fear mongering and outright disinformation that has been spread about bail reform is wrong and disingenuous.

I do believe that trying to change a system that has been in place for over 50 years will take time to get it right. I do believe that there are individuals who struggle with substance use disorders or mental health concerns are humans and needed to be treated with respect. The current criminal justice system does not accomplish that goal which is something I have an open mind about especially when it comes to law enforcement interactions. Additionally, I do believe that individuals who are committing repeat offenses at a heightened pace over a short time frame are individuals who need guidance and support, because there is clearly some sort of issue at play in those situations.

I do not believe the issue of the “dangerousness” judicial standard should be part of the discussion as it is a major step backwards due to the subjectivity. It is problematic because of course everyone wants people who are a danger to others off the streets so they cannot harm people, that is something we all agree on, but “dangerousness” as a standard when it comes to judicial discretion is a totally different matter.

There are proposals being discussed to address repeat offenders especially as it relates to gun offenses, which is critical.  There are proposals to reform and change other laws that may be having unintended consequences such as expanding Kendra’s law, which needs careful consideration.  There needs to be   increased funding for mental health services, increased funding for pretrial and diversion programs, making certain offenses arrest eligible rather than appearance eligible such as hate crime or gun related offenses. These proposals take a more holistic approach to public safety, improve the criminal justice system, and are solutions that will address the underlying problems. Simply rolling back bail reform will not solve the problems and just creates a more disparate and unjust system which is the wrong direction.  And simply saying nothing is wrong is just wrong. I am mindful of the situations where horrific crimes have been committed recently such as the murder of Christina Yuna Lee in New York City.  In this case, as it turns out, the person accused of perpetrating the crime has a criminal record, and people understandably want to know what is being done and can be done to ensure public safety. Me and my colleagues have a responsibility to listen, deliberate, and act where appropriate.

An additional thought to keep in mind. When I meet with law enforcement in almost 99% of the meetings with those leading the department, there is almost universal agreement that the bail system needed to change.  The New York State Police Chiefs have come out supporting a total cashless bail system.  They get it and as one who has previously managed a police department as Mayor for 13 years, I can attest to you that law enforcement has been forced to expand their lanes of responsibility to areas they are not trained in nor should be handling, to be honest.  Law enforcement has the goal to keep communities safe and we need to allow the police to do their jobs and fund them appropriately.  Additionally, as referenced above, we need to invest wisely in programs as such as Law Enforcement Assisted Diversion (LEAD) and ACCORD which is an Albany County program, and they both accomplish two different goals.  LEAD helps provide an option to individuals before arrest to move into a treatment program without exposure to the criminal justice system.  ACCORD encourages first engagement with a trained social worker and EMT to help approach the issue not as a criminal justice issue but as a health issue.  These types of approaches which are showing success in some communities are a viable tool to help reduce arrests, reduce the impossible situations that police currently engage in, and just as importantly help individuals who need help get into a program.  I personally believe that individuals arrested under a substance use or mental health crisis should have that immediate option of enrolling in a program to address the underlying issues. It is a much better option for society and the person rather than sitting in jail.

When it comes to repeat offenders, especially as it relates to gun and drug crimes, those individuals who have had a history of like crimes need to have that factored into the discussion of detaining individuals.  One cannot ignore also the fact that there may be some modifications as it relates to the raise the age law since it did not take long for certain groups to realize that the court system may be a more logical place for a 16 or 17 year old with gun related crimes.  At the end of the day when it comes to victims of gun crimes, it does not matter if shot by a 16 yo or 26 yo – the outcomes are the same.

Finally, as this discussion and the issue evolves, the Legislature needs to provide clear and direct language and guidance to the judges.  Recently I am hearing that some judges are now realizing they have had discretion during this process and it is witnessed as jail populations are slowly rising.  That being said, clarification is critical to make this system work in totality for society.

I look forward to the discussions ahead and your thoughts as always.  As you can see, this is not a simple issue and one worthy of sharing thoughts.  What do you think?  Feel free to reach out to the office at 518-455-4474 or mcdonaldj@nyassembly.gov