New York City

‘Reform the reform’ — Judges call for changes to state bail law

February 7, 2020 David Brand
George Grasso, Bail reform
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The supervising judge of Bronx Criminal Court criticized New York’s new bail reform Wednesday, advocating for judicial discretion to remand defendants accused of misdemeanors and nonviolent crimes, while denouncing a perceived lack of input from judges and prosecutors in developing the law.

Speaking at a forum hosted by the Eagle and York College, Judge George Grasso outlined his criticism of the reform measure, which took effect Jan. 1 and eliminates cash bail on misdemeanors, nonviolent felonies and certain robbery offenses considered violent felonies. Queens Supreme Court Justices Richard Buchter and Ira Margulis also criticized aspects of the measure at the forum.

“I think that, while the goals of the legislature are laudable, the process in developing it was poorly thought out and therefore the product was lacking,” Grasso said, clarifying that he was not speaking on behalf of the Office of Court Administration. “It is time to reform the reform.”

Bail is set to ensure defendants have financial incentive to return to court. The system in place in New York state led to low-income defendants — particularly people of color — being held in pretrial detention, while their wealthier peers could afford to pay for their release. 

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Grasso, a former deputy police commissioner, acknowledged the deep racial and income disparities that informed the push to overhaul the bail law, but said state lawmakers should amend the measure to allow for judicial discretion in setting bail and remanding defendants considered dangerous.

“The scope of removal of judicial discretion on bail matters in this reform package is breathtaking,” Grasso said in prepared remarks. “New York State is the only state in the United States that does not let judges consider ‘dangerousness,’ but instead resorts to twisted logic.”

“We should stop the charade now,” he continued. “It is my opinion that without significant changes, the current legislation will not only be a missed opportunity for long overdue criminal justice reform, but also a significant threat to public safety.”

Grasso led citywide efforts to speed up arraignments and establish opioid courts, and said he developed the proposals in conjunction with other judges, prosecutors and victims’ advocates, as well as the defense bar and justice reformers. 

He said holistic input seemed to be missing from the bail overhaul — a common refrain among opponents of the measure — and repeatedly advocated for “transparency” in the planning process.

State Sen. Michael Gianaris, the bail law sponsor, and other state lawmakers have denounced that critique and have said they did consult with judges and prosecutors across the ideological spectrum. The bail law passed in the state budget last April.

Former Legal Aid Society Attorney-in-Chief Seymour James pushed back against judicial discretion on bail and said the methods used to determine whether to remand defendants, such as risk-assessment tools, perpetuate racial bias in the criminal justice system. Risk assessments create a score based on a defendant’s history to determine their likelihood of committing a crime or returning to court.

“There are risk assessments used across the country and have been found to have a racial bias against the African American community,” James said. “A lot of that is based upon prior arrests and, in New York City, where stop and frisk practices existed … there were high numbers of African Americans getting arrested and those arrests resulted in a conviction that counts towards the evaluation on the risk assessment.”

James also condemned “fear-mongering” around the new bail law, particularly from prosecutors, NYPD brass and conservative lawmakers. Police Commissioner Dermot Shea blamed an increase in overall crime in January on the bail reform measure, for example. But Shea did not have data to back up his claim.

“I think if you look at the cases, they talk about the number of cases that have taken place, I haven’t seen any data which shows that individuals charged with these crimes were released from court as a result of the new bail law,” James said. 

Legal Aid attorney Juliette Haji sought to remind panelists and attendees about the impetus for the bail reform law — inequities based on race and income.

“There’s a lot of talk about public safety, but not enough talk about the thousands of clients we have had who sat in jail for months or years, sat in jail without being proven guilty,” Haji said. “And then lo and behold, something comes up and we learn that this person did not deserve to be incarcerated.”

The form provided a unique opportunity for active judges to speak candidly on public policy and state laws, a fact noted by Grasso and other panelists.

The Office of Court Administration said it welcomed the debate.

“Forums, like the one today, are critical in having all New Yorkers better understand what is a multigenerational change in how criminal justice is meted out in our State” said OCA spokesperson Lucian Chalfen.

“Judge Grasso, with his background both in law enforcement and the judiciary, is uniquely qualified to weigh in on the continuing debate regarding the State’s criminal justice reforms,” Chalfen added.

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