Republican View: Time to repeal, replace failed ‘bail reform’ law

Editor’s note: Due to an editorial error, the statistic regarding reoffenses was changed to read, “Of those [released without bail], about 4% of them went on to be arrested again for alleged violent felony charges, or about 4,000.” It has been changed to “Of those [released without bail], about 20,000 of them were later arrested for new offenses”  to reflect the article as originally written. 

The “bail reform” law inflicted on law-abiding New Yorkers by Albany should be repealed and replaced. Burglary cases involving Michael J. Thomas show why, and Sen. Peter Oberacker’s proposed Senate Bill S6106 shows how.

Poster child for cashless bail

Ithaca’s Michael J. Thomas is the poster child for defects in New York’s “bail reform” law.

On July 7, Thomas was arrested for four counts of Burglary in the Third Degree, a class D felony. These included the June 20 burglary of Mr. Tire, the June 27 burglary of Ithaca Grain & Pet Supply, the June 28 burglary of K&H Redemption Center, and the June 29 burglary of Papa John’s Pizza. He was arraigned in Ithaca City Court and released on his own recognizance.

The next day, July 8, he was arrested for burglaries committed July 6 at Hickey’s Music Store and July 7 at Diane’s Downtown Automotive.

Wasting no time, Thomas then allegedly burgled Safelite Auto Glass (July 9), finished up July 10 with a Sunday trifecta (the Fall Creek House, the Lincoln Street Diner and Rosa’s Ice Cream Shop) and then the Milk Stand Restaurant (July 11).

Thomas was arrested on July 12 and charged with these five burglaries after Ithaca police found him rummaging through a boat on a trailer in the parking lot of Bed Bath & Beyond. He fled on a bicycle, and in the course of chasing him down, an investigator and an officer were injured.

Thomas was arraigned yet again in Ithaca City Court and was remanded to Tompkins County Jail with no bail. In summary, he was arrested for four burglaries and released and then for another two burglaries and released, as required under current New York state law. Only after a third arrest (for five burglaries) and injury to IPD personnel was he remanded to jail without bail.

“No matter how noble the intent…”

Senate Bill S6106 would completely repeal the bail-reform legislation that made this possible. In discussing the proposed bill on WHCU 870 on July 20, Oberacker said, “I think we can all agree, no matter how noble intent, that maybe [the bail reform law] was first put together or formulated, it has been an utter failure. It’s time to pull back, retool, look at the issues that needed to be addressed and allow our men and women in blue to do their jobs and, more importantly, allow our judges to do their jobs.”

He noted that judges and law enforcement agencies were not consulted when the bill was written.

“The stakeholders were never brought into this. It was simply put together, formulated, passed and pushed down on our local law enforcement and judges,” he said in the interview. “One of the interesting dynamics, Joe, that I’ve seen from a business like to, say, government is in business, we put a plan in place, we watch the results, we debrief on those results, and if they didn’t meet your expectation, we go back and we retool. Government? Absolutely just the opposite, does everything except admit when something doesn’t work and simply will continue … doing the same process and expect a different result.”

The April 2019 bail reform legislation prohibited cash bail for all but two types of misdemeanor defendants: those facing misdemeanor sex offenses or criminal contempt charges (see tinyurl.com/2275llmg).

Cash bail also was prohibited for almost all nonviolent felony defendants except for witness intimidation, witness tampering and some instances of felony criminal contempt, money laundering to further terrorism and operating as a major drug trafficker. It requires judges to release defendants on their own recognizance unless a defendant poses a risk of flight.

Changes made to the bail reform law in April of 2022 require judges to choose the least restrictive way to ensure that a defendant returns for court appearance and forbid judges from considering a defendant’s “dangerousness” in setting bail.

Two aspects of this approach might be expected to lead to more crime. First, people not in pretrial detention have more opportunities to reoffend. Second, taking away the financial impact of having to post bail reduces the cost associated with being arrested.

Nearly 100,000 people were released without bail under the new law between July 2020 and June 2021, according to the Albany Times Union (tinyurl.com/275v87t7). Of those cases, about 20,000 of them were later arrested for new offenses.

Time to go back to the drawing board on bail reform

The good intentions that inspired the current law produced an unfortunate outcome: favoring those who break the law more than law-abiding New Yorkers. The result of “no cash bail” legislation was to protect criminals, not to defend the innocent people and businesses they prey on. The people most hurt by the impact of the bail reform law are those living or working in less-affluent, African American and/or Latino communities. And support for the bail reform law has dropped steadily in those groups (see tinyurl.com/265h5l8w).

Cities cannot exist without public safety and civic order. Public safety means more than just not being shot in the street or subway. It means being able to go about your life and conduct your business unmolested by thieves and predators repeatedly put back on the street by judges who have no other options under current law.

One wonders, if Thomas’s third arrest had not involved injury to a police officer and an investigator, would he have been turned loose again?

Regardless of the good intentions behind cashless bail laws, regardless of whether this was a string of the “crimes of poverty” that the legislation considers “negligible,” the owners and workers at the small businesses affected by this crime spree were victimized.

Democratic candidate Leslie Danks Burke showed little interest in them. She said that it was time for a “real honest dialogue including everyone — defense attorneys, law enforcement, district attorneys, judges and advocates for those whom the old regime disenfranchised” (see tinyurl.com/24yd8c2m).

She showed no concern for, or even awareness of, the small business owners whose lives and livelihoods are jeopardized by the current system, which returns criminals to the street again and again and again.

The Republican View appears in the last edition of each month in Tompkins Weekly.