Our leaders need to think very carefully about the implications of recent moves to release both convicted criminals and those charged with crimes from prison. In the rush to advance sentencing and bail reforms, something important has not been adequately considered: the threat to the community.
Determining who gets out of jail and who stays in should be guided by a very basic rule: what’s best not just for the offender, but also for protecting the law-abiding public. Replacing mandatory sentencing laws with mandatory release laws makes no sense, either. Yet that’s what’s likely to happen in New York under an ill-considered law passed by the State Legislature this year.
The bail reform law was tucked into unrelated state budget bills without adequate hearings or public consideration. Hiding such measures in the state budget is an all-too-convenient way of getting laws passed that would likely not be enacted if considered on their own merits.
The law reduces judicial discretion in setting bail for all but the most violent offenders. State law previously granted judges the discretion to set bail based on the “flight risk” a freed alleged offender might pose. But under the new law, judges would have no flexibility to set bail for defendants charged with such serious crimes as manslaughter, robbery, stalking, selling guns to a minor or making a terrorist threat.
Think especially about that last one. Imagine a suspected terrorist who threatens to detonate a bomb. He or she can’t be held on bail, gets released, and then commits the very act originally threatened. The public outcry would be immediate and fully justified. The British public just learned this sad lesson when a convicted terrorist was given early “compassionate release” from prison, only to stab two innocent Londoners to death before police were able to kill him.
Other potentially dangerous results of the ill-advised law abound. Widely respected law enforcement officials, prosecutors and judges warn that because the law applies retroactively, some 300 prisoners being held in Nassau County alone could be eligible for release this month or in early January. Other provisions of the law would allow for the release of defendants for such crimes as breaking and entering to obtain detailed personal information on their victims or to photograph the interior of victims’ homes. That’s a gift to criminals on top of a get-out-of-jail-free card!
Politicians of all stripes tend to make a mishmash of this issue, confusing compassionate treatment of prisoners with considered protection of the public. Much of the debate originally centered on the idea that some people in our prisons are serving sentences that are out of proportion to their crimes. Oft-cited examples are those serving long mandatory sentences for marijuana offenses imposed under tough anti-drug laws, while marijuana is being decriminalized and even legalized across the country.
Keeping these offenders locked up is a lot like keeping bootleggers in jail after Prohibition was lifted. Punishing for what’s no longer a crime makes little sense, and fundamental fairness dictates that these sentences be reduced or eliminated. Adding to the justice of shortening such sentences is the unfortunate fact that too many of those incarcerated for marijuana offenses are people of color. In these cases, sentencing reform makes good sense and is the right thing to do.
This concern with unfair sentences is what led Congress to pass the First Step Act last year with large bipartisan majorities, which President Trump then signed into law. Even the president’s loudest liberal critics had to give him begrudging credit for this criminal justice reform, which restored greater sentencing flexibility to the federal court system.
But restoring more discretion to judges to do what’s fair is a far cry from what sentencing and bail reform have morphed into. Not all those serving long prison sentences deserve to have those sentences shortened or commuted. Calling for reducing sentences for violent crimes makes a mockery of justice and ignores the rights of the victims of those crimes.
Gov. Andrew Cuomo and legislative leaders must address this impending flood of potential criminals onto our streets. Fortunately, bipartisan state legislation has been introduced to correct these glaring defects in the bail reform law. It would restore discretion to judges to set bail based on defendants’ flight risk, criminal record and potential danger to the public. Let’s hope this common-sense proposal prevails in Albany.
Al D’Amato, a former U.S. senator from New York, is the founder of Park Strategies LLC, a public policy and business development firm. Comments about this column? ADAmato@liherald.com.