Chief Judge Lippman backs mayor’s call to ensure dangerous defendants are detained

October 23, 2015 Brooklyn Daily Eagle

Chief Judge Jonathan Lippman. AP photo

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New York’s top judge, Chief Judge Jonathan Lippman, backed Mayor de Blasio’s call for two key changes to state law that would provide judges with more tools to ensure that dangerous defendants are not released to the street. The Mayor called for a change in state law to allow judges to consider public safety risk in determining an individual’s bail amount in the wake of the death of NYPD officer Randolph Holder last week.

“I applaud the Mayor, City Council Speaker and Manhattan DA for calling on the Legislature to correct our state’s bail statutes to allow judges to consider a defendant’s risk to public safety when making a bail determination – something I have long been urging,” said Chief Judge Jonathan Lippman in a statement. “This common sense safeguard is a critical part of a judge’s bail decision in virtually every other state. Unfortunately it sometimes requires a tragedy such as the recent shooting of a police officer to focus attention on glaring deficiencies in the law. I am hopeful that we can now achieve this essential reform.”

Currently, New York State is one of three states that does not allow judges to consider dangerousness when setting bail. The Mayor also called for public safety risk and flight risks to be considered when a judge determines whether an individual is eligible for a diversion program, neither of which is currently required for consideration.

“The death of Officer Randolph Holder was a clear and tragic signal that we must ensure dangerous individuals with long criminal histories do not walk our streets. Yet as the law stands, judges can only consider risk of flight when determining a bail amount. Our judges must be able to look at how dangerous someone is when they decide how much bail is set – and should look at these factors when they decide whether to divert someone away from jail. If someone poses a significant threat to our city’s safety, they must be behind bars – and today’s announcement is a strong step toward keeping our residents, and our hardworking officers, safe from harm,” said Mayor Bill de Blasio.

“Judges have very complicated and complex jobs—and we need to ensure that they have everything they need to make smart and thoughtful decisions,” said City Council Speaker Melissa Mark-Viverito. “We want to make our criminal justice system more fair, just and continues to keep people safe – and the City Council is working hard towards that goal. That is why this proposed legislation is common sense. It will help us keep people safe while also striking the important balances we’re looking for. I am very confident that we can work with our colleagues in Albany to get this done and I am looking forward to getting to work.”

“Most New Yorkers are surprised to learn that judges cannot consider dangerousness or risk of re-offense when setting bail for a defendant,” said DA Vance. “For years, prosecutors and judges have advocated changing New York’s bail statue to mirror nearly every other state. At a time when we are looking at ways to make reforms to our bail system, this is a reasonable change that balances public safety with fairness for defendants. I urge our lawmakers to take action on this much needed and important reform,” said Manhattan DA Cyrus R. Vance, Jr.

Currently, judges can only consider risk of flight when setting bail. State law states that the court “must consider the kind and degree of control or restriction that is necessary to secure his court attendance when required.” The Mayor is calling for the addition of language to the statute requiring a judge to consider whether a defendant poses a danger to the community when deciding how much bail is set. This would allow judges to make more informed and accurate decisions about who should be detained and released, and allow judges to see results of validated risk-assessment tools that have been shown in other states to predict public safety risk accurately.

Tyrone Howard, the individual being held responsible for killing a New York City police officer, paid his bail, which was set at $35,000. Howard had an extensive history of drug felonies and misdemeanors. The judge could have made a different bail decision if he were able to consider Howard’s extensive criminal history as an element of dangerousness. Criminal history is a major component of validated risk assessment tools that have been shown in other jurisdictions to accurately predict whether a defendant will re-offend if released.

The Mayor is also calling for the addition of dangerousness and risk of flight to the state judicial diversion statute. Current law does not require judges to consider either of these factors. Rather, current law that governs who is eligible for diversion requires the exclusion of certain defendants based on current charge and prior offenses and allows a judge to consider any relevant evidence—without requiring judges to consider dangerousness or risk of flight. The Mayor, Manhattan DA and Speaker are calling for a stronger law that requires judges to consider these two factors.

“It simply makes no sense that public safety risk is not a consideration for judges in setting bail or diverting someone away from jail. This gap in our state law is at best a black eye on our criminal justice system and at worst a deadly risk for innocent New Yorkers,” said Brooklyn Borough President Eric A. Adams. “We should be handcuffing dangerous criminals, not judges. I urge Governor Cuomo and the New York State Legislature to right this terrible wrong immediately.”