Andrew Cuomo performed a miracle at a Harlem church on a recent Sunday when he proclaimed from the pulpit that New York’s notorious bail reform law has been fixed. “Some people raised issues about not having enough judicial discretion in that bill. That has been changed, that has been remedied. So now it’s up to the judges, it’s up to the prosecutors, to actually use their discretion and bring the appropriate charges.” Cuomo’s pronouncement is as bizarre as it is inaccurate. Cuomo signed the original bail reform measure into law as governor. Apparently, he now concedes it was flawed and seems to credit his successor, Gov. Hochul, with signing the amendments needed to clean up the mess Cuomo created. If only it were so. The original bail reform bill Cuomo signed in 2019 touched off New York City’s regression toward the bad old days when people feared to walk the streets or ride the subways. After Cuomo’s resignation, in an attempt to appear to “do something” about rising crime, the Legislature passed, and Hochul signed, several pieces of legislation that made minor changes to the original law. None of these amendments, however, altered the fundamental framework of the bail statute. Contrary to Cuomo’s assertion, the current law does not grant judges adequate “discretion.” The bail law still precludes judges from setting bail on a vast number of criminal charges, a provision that entirely defeats the basic purpose of bail — to ensure that a released defendant returns to court. The primary consideration in determining whether, and at what amount, to set bail relates to the defendant’s potential flight risk. The nature of the crime with which he is charged should be a consideration, but not the only criterion. In fact, when deciding how best to secure a defendant’s appearance, one part of the bail law requires a judge to weigh a defendant’s criminal history and any past failure to return to court. Yet, senselessly, the next section of the law absolutely prohibits a judge from setting cash bail, regardless of the defendant’s risk of flight or criminal history, except where the defendant is charged with certain particular offenses. On most charges, a judge has no power whatsoever to set cash bail. Furthermore, New York remains the only state in the Union in which a judge may never consider a defendant’s “dangerousness” when setting bail. Even when the evidence suggests the defendant has a propensity for violence or has engaged in repeat offenses that render him a risk to public safety, a judge may not take such evidence into account. Lack of adequate and sensible discretion over bail was the principal problem with Cuomo’s bail reform bill, and it remains a substantial impediment to the restoration of public safety. Police Commissioner Jessica Tisch, who deserves enormous credit for confronting elected officials in Albany with the reality they wish to ignore, recently said “Our criminal justice system in New York City, largely because of certain New York State laws, is a revolving door where there are no consequences, not just for crime, but violent crime and repeated violent crime. It is out of all control — and something has to give.” Right now, Commissioner Tisch, sadly, is a lonely voice. As a candidate for Manhattan district attorney, I add my voice to hers. While Manhattan District Attorney Alvin Bragg has said nothing on the issue for four years, I join the commissioner in advocating for a bail system that prioritizes law followers, not law breakers. Albany legislators must empower judges to consider all relevant factors, including dangerousness, when determining whether to set bail. The law should not absolutely prohibit the imposition of bail on any offense. Judges need discretion to determine whether to set bail based upon the nature of the charge, the strength of the evidence, the risk of flight, and the defendant’s potential for violent behavior. We cannot hope to restore public safety in New York City unless we truly fix the bail law — not so that a judge can throw every jaywalker in jail, but so that a judge can use the facts and circumstances of each case to decide when it is appropriate to set bail or to remove a violent or persistent offender from the streets. Cuomo claims the problem is fixed; Bragg never acknowledged its existence. We need new elected officials willing to speak the truth and to fight for the reforms necessary to keep all New Yorkers safe. Maron is a candidate for Manhattan district attorney and a former public defender at the Legal Aid Society. ...read more read less