My View

Judges should lead on bail reform

By HON. FRANK J. LABUDA
Posted 1/22/20

The issue of bail is nothing new and has been a legal issue since the beginning of our great country.

After 40 years of experience in Sullivan County Court, I witnessed what the new law means to …

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My View

Judges should lead on bail reform

Posted

The issue of bail is nothing new and has been a legal issue since the beginning of our great country.

After 40 years of experience in Sullivan County Court, I witnessed what the new law means to our residents.

Last week, dozens of criminal defendants pending serious charges were brought into the courtroom. They walked out free on no bail.

Case in point: Reynaldo Sanchez, who is awaiting trial as a major drug trafficker (a class A1 felony) and is facing life imprisonment. He was released on his own signature for $200,000—if he doesn’t show up for trial. Yeah, good luck. Mr. Sanchez also has a prior felony conviction for criminal possession of a weapon in the second degree—a violent felony for which he is serving a five-year sentence. Another defendant, Kudion Tole, who has eight prior felony convictions, was charged with burglary and was released free on bail.

What a tragic revolving door for public safety and victims of crime. What a tragic catch-and-release system for dedicated police officers who may have risked their lives in apprehending these dangerous criminals.

What are the consequences for police, correction officers and public safety in tracking down these defendants who have every incentive to flee? Who become fugitives from justice, now that they have been released on free bail?

They ain’t going back willingly!

Here’s some historical perspective. The King, his sheriffs and courts could use bail procedures to keep adversaries in jail for extended periods of time without adjudicating their charges. So, the Founding Fathers made sure that our inalienable rights would be clearly spelled out in the Bill of Rights. In addition to guaranteeing the right in the First Amendment to free speech and assembly (the cornerstones of our Revolution and a free people), the eighth amendment guaranteed the rights to reasonable bail and to be protected from harsh and excessive punishments.

All Constitutional rights are subject to reasonable and fair interpretation and limitations by courts. Indeed, the most sacred right of speech and assembly has been limited and interpreted. As an example, you can’t falsely yell “fire” in a crowded place. Since we are a common law country from our legal roots in England, our law is also based upon legal precedent—that is, judges’ decisions in individual cases. Judges’ decisions are responsible for most of our constitutional law affecting criminal rights and procedures.

For example, our Miranda rights are judge-made laws interpreted from the Fifth Amendment. The death penalty law enacted by the New York State Legislature was repeatedly struck down by New York courts as being unconstitutional. Indeed, in Sullivan County, the Department of Environmental Conservation (DEC) regulation prohibiting the winter feeding of deer on private property was struck down as being unconstitutionally vague by this judge over the opposition of the New York State Attorney General.

The examples of courts interpreting and applying statutes to particular facts are legion and firmly established in common law.

Accordingly, New York and Federal courts have ruled multiple times over the last 232 years that the Eighth Amendment right to bail is not a right to free bail but only “reasonable.” Many states, including New York, have assisted courts and litigants with legislation articulating several factors to be considered by courts, including the seriousness of the charges, strength of the case, history of the defendant etc.

If courts have erred in setting unreasonable bail, that can be remedied or reviewed instantaneously by a Writ of Habeas Corpus.

The harm that the legislature seeks to remedy by the new bail law can be reasonably addressed by the courts under existing procedure. Free bail is not the answer.

Instead, judges who repeatedly set unreasonable bail can be remedied by the Office of Court Administration or the Commission on Judicial Conduct.

Another remedy is that district attorneys who may continually recommend unreasonable bail can be disciplined by the state’s new Commission on Prosecution Conduct and/or the State Attorney General’s Office.

The new bail statue promotes lawlessness. A catch-and-release policy may be good for promoting fish conservation, but does not promote effective law enforcement and provide for the safety of the community notwithstanding the Presumption of Innocence.

In my opinion, as a former Prosecutor and Judge in our County, this bail law must be changed not tomorrow, but yesterday! It is up to our good judges to carefully examine the legality and constitutionality of the law.

It is up to good prosecutors not to simply accept the status quo, but to fight for the rights and safety of all people. In sum, reasonable bail is certainly the right of a defendant. But it also must be reasonable for the community to help assure their safety.

The Honorable Frank J. LaBuda is a retired judge from the Sullivan County Court and the former Chief Assistant District Attorney of Sullivan County.

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