Buffalo Law Journal News: "Report prompts Erie County attorneys to push for bail reform"

November 5, 2018

Buffalo Law Journal News:

"Backed by the findings of a report on how judges in Erie County issue bail, attorneys and a local legislator are pushing for change.

“It’s in everybody’s best interest to reduce the incarcerated population as much as we can,” said Kevin Stadelmaier, chief attorney at Legal Aid Bureau of Buffalo Inc.

His staff, other area attorneys and Erie County Legislator April Baskin have pitched bail reform to the local Alternatives to Incarceration board and lawmakers. They said they hope the state will revisit law changes in 2019."

By Patrick Connelly | November 5, 2018

A study by Partnership for the Public Good found that median bail amounts set by Erie County judges are higher than those set in New York City. Bail amounts are five times as high for those charged with low-level, misdemeanor offenses and twice as high on felonies.

“It has started a good conversation and the next step forward,” said Andrea Ó Súilleabháin, PPG deputy director and a co-author of the report issued in the spring and titled “Cruelty and Cost: Money Bail in Buffalo.”

Since its release, Erie County District Attorney John Flynn and others have examined how they could do things differently until changed statewide.

Judges met last week with representatives of the Vera Institute of Justice, a nonprofit seeking a reduction in incarcerations, Ó Súilleabháin said.

She relayed early findings in the report to state Supreme Court Administrative Judge Paula Feroleto, Eighth Judicial District, who took the feedback to judges.

Six months ago, Flynn instructed prosecutors to avoid seeking cash bail for minor offenses or non-violent offenders “unless there’s a good reason,” he said. Since then, he has done spot checks and surprise audits and is pleased to see his assistants following suit.

According to the report, bail “punishes poor defendants before their case is heard in court.” Repercussions of “needless incarceration” due to cash bails “ripple throughout the criminal justice system,” the report said.

Jail time creates a “stigma ... that is going to follow you around,” Stadelmaier said. “On the low-level offenses, there’s really no justification for (high bail).”

Studying the courts
The PPG used “court watchers” to observe 240 arraignment hearings last winter before six Erie County judges. They recorded the amount and type of bail set at arraignments.

Bail was set in 154 of the cases observed (67 percent) and in every instance the type of bail was monetary.

The study also found that:

Bail amounts varied from judge to judge.
Only one judge asked the defendants if they had a job or if they could afford to pay for bail.
The most common bail amounts for misdemeanors were $2,500 and $5,000. For felonies, they ranged from $5,000 to $15,000.
Defendants of color typically received the highest bail, with white defendants released without bail 17 percent more often than black defendants and 22 percent more often than Latinos.
Drug possession and theft charges carried the highest median bail – and were higher than assault or harassment charges.

Judges in Erie County imposed bail for minor violations such as disorderly conduct or traffic offenses, which is rare in New York City, the report said.

National studies show jail time takes a psychological toll and people are more inclined to take plea deals if imprisoned, even if they aren’t guilty. Studies also show that trial outcomes are worse for these defendants because, among other things, juries tend to have bias against someone wearing a jail uniform.

Cash bail also “erodes due process,” according to the PPG study.

Approximately 70 percent of arrests in Erie County are for low-level offenses, according to reports. Nationally, about 450,000 people are in jail despite not being found guilty of the crime they are charged with and, locally, 64 percent of people in Erie County jails are not convicted but awaiting trial.

By law in New York when imposing bail, judges are to consider the person’s criminal history and court appearance record; employment status and finances; family and length of residence in an area; the purported evidence in the case; and the person’s mental condition and general character.

In its sampling, the PPG found that of the nine types of bail available in New York, only three seem to be in regular use in Erie County: cash bail, insurance company bond and secured surety bond.

While the judges had not set other types of bail outside of monetary, Ó Súilleabháin said court watchers noticed public defenders often didn’t request alternatives.

“Just like judges aren’t setting (other forms of bail), we didn’t see public defenders ask for it,” she said, adding that the responsibility should be shared.

“Many of those (other types of bail) required far less or even no money payment by the defendant,” she said. “The long-term financial impact (would be) much less for defendants and their families.”

Implementing change
“In order for there to be any meaningful structural change, there needs to be change in state law,” said attorney Frank Housh.

Gov. Andrew Cuomo pushed for bail reform last January and said the cash bail system should end this year.

What the D.A.’s office has done is a good start but there needs to be a written law either in Erie County or New York with uniform stipulations that would bring a consistency to what can be dispersed, Ó Súilleabháin said.

Even when little or no cash bail is used, Stadelmaier said a “high percentage (of defendants do) return to court when they are supposed to.”

“People do come back. They do get in contact with us ... (and) stay in touch with us throughout the course of their case.” he said.

Upon Cuomo’s announcement, Baskin was asked to review the local situation. She said she talked to Flynn and area judges regarding the matter.

“They have a great understanding of the disparities and the barriers,” she said. “I think all of those conversations were very positive. ... I’m definitely confident that we’re moving in the right direction.”

The average cost to house a jailed individual is $170 a day in Erie County. That’s a burden on taxpayers, she said.

By tailoring a state law to be similar to what Flynn initiated, Erie County “could be a very good example (and) almost a template to what (lawmakers in) Albany should be doing,” she said.

Flynn agreed that jail time can make it difficult for low-income defendants to prepare for court.

The policy he has used on an ad-hoc basis would work statewide so long as prosecutors could still push for higher bail in instances where it’s needed, he said, such as when charges are more serious or when the person could harm others or be a flight risk if released.

“There needs to be a caveat,” Flynn said. “That’s the purpose of bail. We have to ensure that the person comes back to court.”

The PPG offered suggestions on what could be done before reform is passed, including:

Using alternative, affordable forms of bail and educating judges on how to administer them.
Conducting assessments of someone’s ability to pay.
Expanding pretrial support services and implementing a “reminder system” for court appearances such as text message notifications.
The Legal Aid Bureau will soon use a new database that will provide better reminders and could incorporate texting, Stadelmaier said.

The PPG’s full report can be found at ppgbuffalo.org."

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