Why not check laws with law enforcement first?
Doesn’t it make sense that lawmakers, before they pass any new law, should have to seriously consult with the professionals who will have to uphold and enforce it? We think so.
Of course, legislators won’t always do what police and prosecutors want — nor should they. But doesn’t the president consult with generals before taking military action — not to do their bidding but to collect all the relevant information and advice, and to know the impact of the decision on the people who will carry it out?
Likewise, when the New York State Legislature passes a new criminal law and the governor signs it, they should keep in mind that they have just given another task to police, or some other enforcement agency. Is that task doable? Might there be unintended consequences?
What if lawmakers were required to put such a question to a law enforcement panel, with representatives from the State Police, municipal police and sheriffs directly elected by the people? Wouldn’t that result in laws that have fewer unpleasant surprises?
We’re hearing a lot of political hubbub about the elimination of cash bail for many offenses and new rules requiring police to get criminal case evidence to defendants faster. These laws faced objections from law enforcement professionals in the months after they were passed last April, but majority Democrats were so busy with all the other laws they had passed they they largely ignored the concerns. The laws took effect Jan. 1.
Now Republicans throughout New York have seized on this issue as a campaign bludgeon. Whether or not voters understand the details, they can be led to believe it’s another example of Democrats being “soft on crime” or “siding with criminals” over cops.
Originally, however, the objections from police and prosecutors were pragmatic rather than partisan. They weren’t necessarily questioning the main premise of bail reform, which is to correct a system that let some defendants await trial at home instead of jail, simply because they had money. The idea was to apply that to all nonviolent defendants, regardless of cash on hand.
Police and prosecutors worried that the new law applied to too many criminal charges, including borderline violent ones such as burglary, assault without severe injury, stalking, and even some kinds of arson and robbery — also drug dealing, which often involves defendants unlikely to show up in court. The new law requires police to only issue a court appearance ticket in these cases, and it doesn’t give judges a chance to decide whether the defendant poses a flight risk or a threat to public safety. (Note: Since the 1970s, judges have only been allowed to consider flight risk, not public safety, in assigning bail.)
“I don’t think you’ll talk to anybody who is involved in criminal justice that doesn’t think that there could be some reform,” Franklin County Sheriff Kevin Mulverhill, a Republican who runs the county’s jail and ran for state Assembly in 2018, told the Enterprise in December. “We needed some reform, but I think they’ve just gone way too far.”
“A lot of impoverished people were put in jail for minor bail amounts that they couldn’t afford,” Tupper Lake village police Chief Eric Proulx said. “I read that people were rotting in jail, waiting for their cases to be heard in the system.”
One of those was Kalief Browder, a teenager from the Bronx who spent three years in the Rikers Island jail because his family couldn’t raise $3,000 for bail. His charges were eventually dropped for lack of evidence. Such an experience would traumatize anyone, especially a teen. He later killed himself. His story energized the movement to abolish bail statewide.
But what about a bar fight? Police would often charge such combatants with disorderly conduct, Proulx said, but under the new law, officers couldn’t take them in for arraignment. Appearance tickets in hand, they might go right back to the bar for more drinks.
“How many times is that going to go on through the course of the night?” Proulx wondered.
It’s not just about bail, either. The new discovery rules require police to file most of their evidence for the defense within 15 days. There are good reasons for this, to lessen the uphill battle defendants sometimes face, but perhaps there could be tweaks to make it easier for short-staffed police to do their jobs.
These legitimate concerns were not aired until it was too late. This law was passed with almost no discussion on the Assembly and Senate floors, and not as stand-alone bills but packaged with last year’s state budget. Such a massive change deserved a better public hearing than that.
We think bail reform is, in general, right and just, but not if it doesn’t work — and not if people don’t trust the process.
We agree with some Democratic legislative leaders that many of the bail reform complaints are overblown. That’s politics. But beneath the drama, the grievance is not 100% wrong. It deserves some attention and tweaking.
This kind of thing could be avoided if lawmakers would give law enforcement a seat at the table — not a vote, but a voice.