When a new law focused on criminal justice reform goes into effect on January 1, judges throughout the State of New York will no longer be able to require bail even for charges such as vehicular manslaughter. The law, which was enacted earlier this year, also eliminates cash bail for most misdemeanor and non-violent felony offenses.
In addition, the law will require police departments to turn over all evidence leading to an arrest within 15 days.
“Everyone else is issued an appearance ticket and released — regardless of prior criminal history, regardless of threat to the community, and regardless of any other level of offense, they get an appearance ticket and they’re cut loose,” East Hampton Town Police Chief Michael Sarlo explained at an East Hampton Town Board work session on Tuesday.
Bail is mostly about getting the defendant to return to court, though some judges have used it for punitive reasons. Under the current law, judges are able to set bail based on factors like how much the defendant can afford to pay and whether the defendant contributes to society.
Some have no problem posting bail, while those who do not make as much money may struggle to post bail.
For example, East Hampton-based attorney Carl Irace said that a homeless person who steals a loaf of bread could be charged with petit larceny, which is a misdemeanor. A judge could set bail for the homeless man at $5 — but if he was stealing bread, he might have a hard time coming up with even $5.
On the other side of the spectrum, an A-list celebrity who suffers from kleptomania but might steal a loaf of bread from the same rack; he obviously could post $5,000 — but also might be more likely to flee to a second home in California and never return to court.
Mr. Irace said that in this scenario, no police department is going to come after the A-list celebrity on a shoplifting warrant. So, what is the proper amount to ensure that someone returns to court — $500? $1,000?
“Both of those people should probably be released,” Mr. Irace said. “You have a fundamental inequity where you have people getting treated differently because of their access to money. I think treating people indifferently because of who they are, or their circumstances, is one of the fundamental inequalities that bail reform is looking to balance.”
Bail reform was needed, he said, but he said he has his own feelings about whether the state law goes too far.
As towns like East Hampton and Southampton rush to prepare for the implementation of the law, officials are also worried about the financial burden being imposed on the municipalities. Not only will municipalities have to return bail already posted by defendants who would not have had to pay bail under the new law, but government officials fear that the law will require more staffing and better technology.
On Monday, Southampton Town Police Chief Steven Skrynecki said an important component of the new law addresses discovery, or the material used by police departments to prove probable cause for a criminal charge.
Discovery includes evidence like calibration records for a speed gun if a person was charged with speeding, video surveillance of private residences or commercial properties, depositions taken from witnesses, statements made by the accused after being read their Miranda rights, videotape of a defendant in custody, and notes from an officer’s memo book.
The law requires prosecutors to share all the information they have with defense attorneys well in advance of a trial. The law also enables defendants to review the evidence before pleading guilty to a crime.
To make the material available, the new law stipulates that all discovery materials be submitted by a police department to the district attorney within 15 days of an arrest.
“That requirement was always there, but not in a 15-day time frame — and if a defendant pled guilty to an accused crime, that discovery wouldn’t come into play at all,” Chief Skrynecki said. “Now, all cases require the application of discovery, and all cases require it within 15 days of an arrest. So, this is a paradigm change to police and the prosecution in terms of timing.”
The law requires that the department, from the time of arrest, put together a package as quickly as possible and turn it over to the district attorney. Both East Hampton and Southampton towns are working with Suffolk County District Attorney Timothy Sini and his office.
Mr. Sini, who could not be reached for comment this week, has established an intake bureau to review every arrest made by every police agency in the county.
If after 15 days a department does not have the results from a drug test that needed to be sent to a lab, it has to be noted that the drug test is pending and will be provided once the results are available.
Today, Mr. Sini’s team is trying to pinpoint the level of staffing that will be needed, based on estimated numbers of arrests throughout the county and the time those arrests were made, according to Chief Skrynecki.
He said the Town Police are in a trial period trying to figure out how long the process will take and how information like videos will be shared.
“It’s a positive change in approach, but how it gets executed is challenging,” Chief Sarlo said, similarly, at the East Hampton work session.
When it comes to the ability to share electronic material, Chief Sarlo said, his department is looking at ways to upload it to a virtual cloud so that it can be shared with the district attorney’s office.
In addition, mechanics and staffing are being analyzed at both town police departments.
For instance, in Southampton Town, Chief Skrynecki said, an officer may make an arrest at the end of his or her shift. The officer would then be required to go back to the station to begin putting together the arrest package of discovery, leading to potential overtime.
If an officer makes an arrest at the beginning or in the middle of a shift, he said, there will be less policing on the street, because that officer will be assembling discovery materials.
“It’s more time to create a complete discovery package, where, in the past, it might have been partially completed initially and followed up later at a more convenient time — or possibly never followed up with if the defendant decided to take a plea deal,” Chief Skrynecki said. “It’s not better or worse, but it’s certainly not better. It’s going to drive a process that in some cases was never completed. It’s going to drive each process to be totally completed, and it’s going to drive it to be done rapidly.”
Arrests happen 24 hours a day, seven days a week, Chief Sarlo explained to the Town Board, and the DA’s office is doing what it can to review arrests — even hiring up to 70 staff members and spending several millions of dollars on that and on technology in order to meet the law’s requirements.
Unfortunately for the towns, budgets were finalized before the towns’ officials found out about the law.
Chief Sarlo also said if each arrest is run through the DA’s office, each officer will have to spend an additional two hours for each arrest. The Town of East Hampton averages 800 arrests per year, so that would mean an additional 1,600 hours.
“All of this is costly,” East Hampton Town Supervisor Peter Van Scoyoc said on Tuesday. “The time taken away from actual policing [and] we have challenges already in season with that. And the costs. None of this really became apparent to municipalities throughout New York until after their budgets were done, and that’s certainly the case with us here in East Hampton.
“There will be a challenge as well — being able to try and meet the need for resources, when none have been allocated for the state along with these additional requirements,” he added.
In addition to costs, some say the prosecution of cases could be jeopardized. Chief Sarlo said that if a person is arrested and the evidence is not turned in to the DA’s office and made available to the defense within 15 days, the charges could be dropped.
Also, if a defendant is able to see all of the discovery — including key witness statements — and takes a plea deal, the witness could be in danger. This also could result, Chief Sarlo said, in fewer people being willing to give statements to prosecutors.
Assistant East Hampton Town Attorney David McMaster said the only way to effectively remain anonymous is to call from a blocked number and say you want to remain anonymous.
“We’re all about quality of life … people are going to be afraid to come forward,” East Hampton Town Councilwoman Kathee Burke-Gonzalez said.
Chief Skrynecki said a defendant would have to be charged with “very, very serious crimes, such as murder or some egregious sex conduct crimes and the like,” in order to be held before arraignment. He said he anticipates that there will be more people failing to make court appearances, which will result in more warrants for their arrest. Additionally, police will find it challenging to manage an increased warrant load.
“This is a very, very significant change in the law in terms of impacting the operational procedures of a police department and how the police department interacts with the prosecutor’s office and the defense,” Chief Skrynecki said. “This law, unlike many other laws, will have a more serious impact in our operations.”
Even back then, some people pleaded that the overcrowding issue could be solved by reevaluating the bail system.
Then-Suffolk County Legislator Peter O’Leary said at the time that 70 percent of the jail’s population was made up of “serious felons,” and that it would probably be a bad idea to let them out on the streets. But non-violent offenders, like someone awaiting trial or sentencing for driving without a license, or even burglary, who could not afford to pay bail should have some sort of alternative to sitting in a cell.
Many of the 301 inmates who were released prior to January 1 would have been held on bail under the prior system, depending on the severity of the crime and the defendant’s past history.
“Judges used to have some discretion on whether or not an individual should be held on bail,” Sheriff Toulon said. “Now, it is black and white — no bail for these crimes, regardless of the impact to the community. The offender will be given a court date and told to come back for court.”
Sheriff Toulon, on Tuesday, joined several other local law enforcement officials and police unions to announce the formation of the “Common-Sense Coalition,” which will work toward coming up with suggestions for amending the state’s bail reform law.
Another part of the Criminal Justice Reform legislation, which went into effect on January 1, was how discovery material, or material used by police departments to prove probable cause for criminal charges, would be handled. Under the new law, all discovery material must be submitted by a police department to the district attorney within 15 days of an arraignment.
The material includes evidence like video surveillance of commercial or private residences, calibration records for a speed gun if a person is charged with speeding, statements made by the defendant after being read their Miranda rights, and notes from an officer’s memo book.
East Hampton Town Police Chief Michael Sarlo, on Tuesday, said that due to discovery reform, processing arrests and working with the district attorney’s office to verify receipt of the paperwork is taking a longer time, although he did not offer specifics.
He added that the department is busy cleaning up how it processes arrests and evaluating internal procedures before the busy summer season kicks off.
“We could lose many, many patrol hours to officers sitting in headquarters processing arrests through the DAs, and expend a great deal of overtime,” Chief Sarlo said. “We also continue to be concerned about minor violations and summonses, and the overall impact on public safety and quality of life this reform bill will have on the effectiveness of our enforcement efforts.”
In terms of community safety and the impacts the law could have, he said East Hampton Town has been lucky — so far.
“However, as recent high-profile cases have shown, there is a serious flaw in part of this reform, which doesn’t consider past criminal history or severity of certain charges and does not consider numerous offenses ‘violent’ or the defendants posing any risk to the community at large,” he said.
Sheriff Toulon said there are programs in place at the Suffolk County Correctional facilities that are rehabilitative in nature, so when an inmate is released back into the public, they have something to offer. The new law may deprive some defendants of the opportunity to take advantage of those programs, he said.
For example, 18-to-25-yearold inmates work a 40-hour workweek in a program called “Choose Your Path,” and outside of the workweek, skills such as small engine repair, landscaping and carpentry are taught. While the inmates won’t become master apprentices in the programs, he said, the skills are transferable when they get out of jail.
He also said many people committing robberies and burglaries have substance abuse issues that can be addressed through incarceration.
Sheriff Toulon said he has spoken with parents of inmates who said jail is saving their son’s or daughter’s life, especially when they are addicted to drugs. “It gives an individual the opportunity to, hopefully, get a clearer head, address their issues and hopefully leave here a little better,” he said.
Stripping away a judge’s ability to require bail is not the solution, he added. Judges have the discretion to put individuals in diversion programs such as youth court, veterans court and drug court, if the defendant meets the criteria to enter the program.
Sheriff Toulon said if the judges have the discretion to put inmates in those programs, they should have the discretion for bail, especially if a defendant has a history of not returning to court when told.
“I’m not saying jail is the stop-all gap,” Sheriff Toulon said. “The biggest thing for me is to have a judge have that discretion to make that decision.”