New York’s Pending Criminal Bail Law A ‘Ticking Time Bomb’

The bad ‘80s are about to come back.

If virtually every law enforcement agency and most elected officials are to be believed, the era when New York was the murder capital of the nation, where police stations had “You give us 22 minutes, we’ll give you a homicide” signs, are in danger of returning when a law passed earlier this year goes into effect in three weeks.

The cash bail reform act, warns Yisroel Kahan, who heads the Oizrim Jewish Council and works as a community liaison to several local police departments, will dump thousands of criminals onto the streets and is liable to make it much harder for police to prosecute crimes.

What is the background of the bill, and why is it problematic?

Criminal justice reform is now the up-and-coming thing. The president passed one on the federal level after years of lobbying, so now it’s in style everywhere. New Jersey and a lot of other states did some laws. In New York, they also did it—and they managed to mess it up.

For example, lawmakers in Albany never had any input from police, from judges, from prosecutors—it was all done by criminal lawyers, the ones who were pushing for it all along. It wasn’t a two-sided conversation. Everyone knows that if you’re looking to ban chlorine from swimming pools and you hear from one side, you’ve got to hear from the other side as well.

Number two, it wasn’t debated on the floor of the Assembly. It was jammed into the budget bill. So you have a major criminal reform bill snuck in in middle of the night and lawmakers that I spoke to said they didn’t know what they were voting on.

The budget bill? Does this law have an impact on the state budget?

No. Although it will cost local governments a lot of money further down the road.

But the point is that every assemblyman or senator asked about this all said, “Oh, we didn’t know, it wasn’t debated. We just voted for the budget and this was part of it.”

Let’s get to the law itself. I understand there are two parts to it.

First of all, it gets rid of bail for 90 percent of crime categories in New York. Admittedly, there was an injustice going on that if a poor person was arrested, he could be stuck in jail if he didn’t come up with the bail money. But this goes much further than that.

New York has what’s called mandatory bail. For example, I received a call last week from a Monsey resident who had just found out that there was an open arrest warrant for him. It turned out that he had changed residence and notified authorities, but it didn’t go through. They sent court notices to his old address but he never saw them. Before he knew it, there was an arrest warrant out for him for missing a court date. If he would have been stopped at a driving checkpoint, he would have been arrested and fingerprinted and come away with a record.

What I usually do in these cases is I check if there’s a bail set. If bail is set, I can just come up with the money and the process if over.

But when it comes to real crimes, such as shoplifting, there is mandatory bail, meaning the judge has no control whether or not to let him out without bail. The prosecution asks for a high bail; the defense tries to knock it down. There were people who sat in jail up until the court date just because they didn’t have the money to bail themselves out. There are also bail bondsmen.

This thing needed big reforms. So what legislators did was they did away with bail on the vast majority of crimes. If someone is a dangerous person, the judge will no longer be able to use his discretion and say, “I don’t think this guy should be out there.” You could have a gangster who beat someone to a pulp. He could be a lowlife, someone without a job. He has no incentive not to do it again. But the judge will have no right not to release him.

Before we go to the next part, I want to read you something sent out by the Queens district attorney’s office regarding the list of crimes that judges will not be able to hold on bail. Some of these crimes just jumped off the page to me. It includes aggravated harassment as a hate crime, assault as a hate crime, stalking, vehicular manslaughter, criminally negligent homicide, bail jumping—bail jumping! Is this serious? Judges must allow these criminals back on the street?

Yes. Scarier than doing away with cash bail, they took away the power of the judge to decide if a criminal has to stay off the streets. Take a case of a person suffering groin psychiatric problems. You can go to the judge and say, “Listen, your honor, this and this is the case. I know it looks bad, but the child has been through XYZ.” By giving the judge a little inside information, they could use their authority to mandate that the person go to treatment instead of to jail. This is a judge using his discretion.

When you have a suspect who is nebach sick but he refuses help, you need two doctors to agree before they could force someone into treatment. And if he can intelligently talk his way out of it, he can convince the two doctors to keep him out of treatment. But sometimes, the judge’s power was used to coerce someone into treatment, whether it was for drugs, alcohol or just psychiatric treatment. The judge says, either go for the treatment or I’ll lock you up.

The judge is a local person. He knows what he needs to do. When you take the discretion away from him and he’s not allowed to look at the danger of keeping a person off the streets, it can be very dangerous.

Let me read you another portion of the Queens DA memo. “Under the new bail laws, effective January 1, 2020, judges in New York state cannot set bail on any of the following crimes … and must release the defendant on non-monetary conditions, regardless of criminal record, ties to the community or previous bench warrants on other cases.” Is this true? Does this law take away a judge’s right to deny bail if the guy already skipped bail a bunch of times?

Absolutely. Even for a career criminal, you cannot use criminal history in these things. For example, if you know someone who’s an immigrant from a different country, not married, he’s a wild person and doesn’t care about anything—you can’t take into consideration that he’s a danger to society and keep him in the system. It’s no longer an option.

What is law enforcement saying about this?

I was talking to friends in both law enforcement and prosecutors. They were all saying that this is crazy. They say that they welcome oversight but they were not consulted when this reform bill was crafted. What they’re doing now is, they’re asking for a 90-day moratorium so they can review its results.

What’s the second part of the new law?

The second part is, in most cases, the criminal will have the right to come back to the scene of the crime.

To explain: there’s a thing called “discovery.” Before someone goes on trial, police had to provide to the defendant whatever they have. “You committed this and this crime. This is what we have, here’s the evidence we’re going to use against you.” And at some point in time, close to the trial date, the defendant must be provided with the name and information of the victim and the witnesses.

Now, under the new law, the defendant must be provided with everything that has any sort of relevance to his case.

For example, someone shoplifts at a supermarket and gets arrested, prosecutors have 15 days to provide all evidence to the defense. For example, every video recording at the supermarket involving the shoplifter needs to be turned over. Every single camera, every single film that has him in it has to be turned over. The 911 call has to be turned over. The dashcams in the police car. If it’s not given within 15 days, they need to get special permission from the court to have the evidence admissible anyhow.

So, for example, say you live down the block from where something allegedly happened and you have a good security camera. Now, the police want your footage, but you’re away in Eretz Yisroel for Yom Tov, and will only be back in ten days. If it takes a day or two until they reach you, they now need special permission to have it admissible.

Also, the name of every victim and every witness has to be shared with both the prosecution and the defense from the get-go.

Think for a second—if a hate crime or a burglary happens in Boro Park, people can say, “I’m not filing a police report, just leave me alone, it wasn’t worth that much anyhow.” Shomrim, police liaisons have to do a lot of convincing to get people to file a report. We tell them, “Don’t worry, the police is going to protect you, the bad guys are not going to be able to come after you.”

You’re losing your whole leverage with victims and witnesses.

Exactly. If people were hesitant to come and bear witness until now before these crazy laws go into effect, why in the world will they allow me in when there’s a mugging, an assault or worse? People are not going to want to testify. They’ll be spooked to bear witness when the guy will have all their information.

Obviously, one of the big concerns about this law is if a thug goes into someone’s house and assaults them, the homeowner will be forced to give them access to their home and the scene of the crime. Will there be an exception if this will cause extreme trauma, such as if the victim is a woman or a child?

You can always have a judge say, “No, I do not give permission in this case.” But that is certain to be appealed. If the homeowner says he doesn’t care, I’m not letting you in, or the judge says he’s not allowing the defendant access, two things are going to happen. A, the case is going to be tossed, and B, he’s going to be held in contempt of court. Ironically, the homeowner can be arrested for obstruction of justice.

If someone commits an assault, whether its burglary or harassment, or even does something violent, the perp can go back to the place where he committed the crime and you’ll have to let him in.

For what? What’s the purpose of letting him into the house? It’s not like this is a scene of a shooting, where every shell casing on the floor has a number and there’s a diagram of where the body was laying. Why are you visiting the house where you committed an assault if not to intimidate and harass the victim and the witnesses?

The way you describe it, it sounds hard to believe that this is an actual law that’s going into effect in a few weeks.

It’s unreal, but true. Some people will say that other places have similar laws. But it’s not exactly the same as this law in New York. Go back to that part of the law that they have to turn over every piece of evidence for discovery. You know how much time goes into pulling camera footage, making sure that nothing sensitive is released?

Take Walmart cameras. You know how many cameras Walmart has? You know how many cameras Evergreen has? Every camera that has this thug, the guy with the green shirt and the red cap, needs to be turned over. It needs to be viewed, it needs to be cut, it needs to be put together. You know how many hours that takes? A local police chief told me that it took them five hours to upload evidence for the district attorney just for one case. Add to that the hours that it took for people in the police station to put everything together. It’s absurd.

In New Jersey, for example, I’m not sure, but I think they give them 45 or 90 days for them to turn over evidence. Over here, it’s just 15 days.

Just think about it. The attorney general here in New York, who’s a progressive, liberal woman—though I respect her, because she’s fair and gives everyone a shot—she’s against this law. All five district attorneys in New York City are against it. Law enforcement, sheriffs’ associations, police associations, district attorney associations—there’s nobody who’s for it. Are you telling me that they’re all not compassionate?

Are you hearing this from law enforcement?

Yes. They’re telling me it’s a nightmare because they’re going to have a hard time soliciting witness accounts, especially in minority communities where people are poor and more easily intimidated. Think for a second, you have someone living in a public housing project and crime happens, you know how hard it will be for police to get someone to come forward and report it? They’re just thinking, as soon as this guy gets out of court he’s going to come and bust my door down.

People are afraid. All their information will be shared with the suspect. You might as well have a big target painted on your back. Until now, if you tell police you’re afraid of retaliation, the judge can keep him locked up. Now the law doesn’t allow that anymore.

In addition to this law, Gov. Andrew Cuomo has said he plans on releasing almost 900 prisoners in December if they would be eligible for release under the new law. And Mayor Bill de Blasio is saying he’s offering an incentive of free movie and sports tickets and gift cards to get parolees to come to court when they have to.

More craziness. If you or I have a minor court appearance for a motor vehicle infraction and we don’t show up, our license gets suspended and we get a bench warrant. But in New York City, when you commit real crime, not just a traffic offense, you get tickets to a Mets game.

How did you get involved in police work?

I’m originally from England. I learned here and then got married and moved to Monsey. I have served with various municipalities as a police liaison or community liaison. I also founded an organization called Oizrim Jewish Council. It’s a low-key organization—we connect people with government. People need help navigating bureaucracy, a yeshiva needs help with inspections, etc.

You said before that a lot of legislators said that they themselves did not know what they voted for. Is there any chance of this getting pulled the last minute?

In Rockland County, every single state legislator said they were not aware of this. This is not about party or politics. It is of deep concern for law enforcement and public safety.

Are Shomrim groups around the state preparing for a rise in violence?

I’m in contact with police liaisons from every community. This is a major problem. This is ticking time bomb, basically.