New York’s Chief Judge Jonathan Lippman recently announced that he would take the matter of bail reform into his own hands. During an address to the Citizens Crime Commission in Manhattan, Judge Lippman, stated that the bail system “punishes people for being poor.” He urges judges to set bail at lower amounts and to use bail alternatives such as electronic monitoring.
Lippman has been an outspoken proponent of bail reform for a long time, culminating in a failed attempt to get the State Legislature to make legislative changes to the system. Lippman blames the current bail system for overcrowded jails and goes as far as to blame the system for “tear(ing) apart the very fabric of people’s lives.” Lippman advocates a special judge to be appointed to automatically review all bail settings and to determine whether the bail should be reduced. Furthermore, the Judge wants other judges to review the strength of the people’s case periodically to determine if bail should be lowered or even eliminated in certain cases. Ultimately, he wants to “end our reliance on cash bail in New York.”
Why the problem isn’t with the bail system
In an open letter to the editor, Judge Edward McLaughlin of the New York Supreme Court artfully describes why Judge Lippman got it wrong. Judge McLaughlin points out that the Chief Judge’s assertion that it is a “broken” system is not only false but also insults the very judges that make these decisions. Judges who work independently and are governed by bail review which is currently available in the state. Judge McLaughlin concedes that the bail system can “produce an unwelcome result…” but it “does not mean the decision was wrong or that the system is broken.”
Judge McLaughlin notes that there are a large number of warrants issued each year for non-appearances by defendants. Some of these defendants have posted bail and others were released on their own recognizance. This, however, does not factor into future bail decisions. All bail decisions are made on a case-by-case basis. Changes to the bail system are to be made at a legislative level, not by an administrator to the courts. The mere suggestion that the Chief Justice could “influence discretionary decisions of judges” is insulting to other judges. Judges have been making bail decisions on a case-specific basis, as they are legally and ethically obligated.
The idea that bail is being set “too high” is simply incorrect according to Judge McLaughlin. The bail system is discretionary. It is “designed to produce varying results.” The fact that it produces varying results is proof that it is working. It is not suggested that bail was set too low for defendants who have posted bail and then failed to appear at subsequent court dates. Bail cannot and should not be based on the goals of an administrator but rather must remain discretionary based on the independent review of seasoned Judges. The same judges who set bail in certain cases are tasked with releasing defendants without bail in other cases. There is no one-size-fits-all mandate, nor should there be.
The Chief Judge, according to McLaughlin, has overstepped his authority in seeking administrative change to a system that requires legislative action. Simply because some people are unable to post bail does not permit unlawful interference. It is an unfortunate reality in a system that treats every case independently. Bail decisions are able to be reviewed and have been done so since the early 70s.
Simply stated, the problem isn’t with the bail system. Yes, jails are overcrowded but there are also a disproportionate amount of fugitives who have either been released without bail or posted bail and failed to attend future court dates. This proves that bail is neither across the board too high or too low. It must continue on a discretionary basis left to the legal experts that are trained on making these decisions and left to a review process that allows aggrieved parties to be heard on any indiscretions. Chief Judge Lippman took his concerns to the legislature and was unable to get a bill passed through this legal measure. His vigilante attitude towards bail reform is insulting to other judges and fails to address the real issues facing the criminal justice system. Here, as New York Supreme Court Justice McLaughlin suggests he simply got it wrong.