ALBANY – Chief Judge Jonathan Lippman yesterday called for a "top to bottom" overhaul of making bail determinations that not only protects public safety but is fair to low-income defendants waiting for their cases to be adjudicated.
Lippman told judges, elected officials and lawyers gathered at the Court of Appeals for his 2013 State of the Judiciary message that a "coherent, rational approach" is needed for a "vitally important part of the criminal justice system that has been untouched by reform."
The chief judge urged passage of an amendment to the bail statute that would allow judges to consider the risk that defendants will commit additional offenses while awaiting trial in addition to the risk that they will not appear in court.
At the same time, he called for the creation of a statutory presumption to make clear that where defendants are charged with non-violent offenses they will be released pretrial with the least restrictive requirements possible unless prosecutors demonstrate they poses a legitimate risk to public safety or of flight.
"Our overriding goal must be to ensure that pretrial detention is reserved only for those defendants who cannot safely be released or who cannot be relied upon to return to court—and to do all we can to eliminate the risk that New Yorkers are incarcerated simply because they lack the financial means to make bail," Lippman said.
He also proposed the expansion of supervised release programs that monitor defendants pretrial and provide them with needed services. He noted that the cost of such programs is between $3,100 and $4,600 per defendant, compared to $19,000 for pretrial detention. Nearly 30,000 people are held in local jails at any given moment, the chief judge added.
In an interview after the speech, the chief judge and Judge Lawrence Marks, the first deputy administrative judge of the state courts, said it was unknown how many defendants would qualify for pretrial release under the proposal.
But Lippman said one ramification is clear: If his proposals are enacted, the bail bond industry in New York would be "basically irrelevant."
"It’s a travesty that judges, prosecutors, don’t make decisions about a person’s liberty, that they’re made on the basis of a profit-making money enterprise," Lippman said. "That that’s the person who has in many instances the critical role in determining a person’s liberty is outrageous. This is not something we can be proud of."
Critics of the current system complain that it effectively keeps poor people accused of low-level, non-violent offenses in jail because they cannot get bonds for relatively small amounts, such as $1,000 or $2,000. It is unprofitable for bondsmen to deal with such clients, said Steven Banks, attorney-in-chief of the Legal Aid Society.
In his address, Lippman said his reforms would lessen the reliance of the criminal justice system on a bail bond industry that exercises "enormous influence over who is released pending trial and who stays in jail" with "precious little public accountability." He called for testing whether the profit motive can be taken out of bond making, citing the example of The Bronx Defenders, which created a special fund to help low-income defendants make bail.
The chief judge also pointed to a supervised release program in Kentucky that he said has saved the state about $31 million since 2005 in lower detention costs.
In both the Bronx and Kentucky programs, Lippman said participants returned to court at a rate of 90 percent or better.
Lippman said the Unified Court System is working with the Center for Court Innovation to develop a supervised release program in New York City for misdemeanor defendants now being detained.
Assembly Codes Committee Chairman Joseph Lentol, who attended Lippman’s speech, said he wanted to know more about the chief judge’s plans for the bail system.
"I thought it was an excellent proposal," said Lentol, D-Brooklyn. "Public safety is a concern for all of us, and we have to be mindful of it when setting bail."
On another criminal justice topic, Lippman said more must be done to prevent wrongful convictions.
He applauded passage of a law last year, urged by the courts’ Justice Task Force, expanding the DNA database and giving defendants greater access. And he joined Governor Andrew Cuomo in supporting the mandatory videotaping of interrogations of those accused of felonies and the institution of lineup procedures that shield suspects’ identities from test administrators.
He renewed his proposal for raising the age of criminal responsibility to 18 from 16 (NYLJ, Sept. 22, 2011) but said he would make changes to alleviate concerns about costs.
For one thing, Lippman said, the program the courts submit to the Legislature would require the courts to reimburse local probation departments for added costs. And he said the legislation would permit the holding of 16- and 17-year-olds in adult jails—but separate from adult offenders—rather than requiring their relocation to extremely expensive juvenile facilities.
In other areas, the chief judge:
• Backed a legislative proposal to allow audiovisual coverage of all courtroom proceedings with the stipulation that the presiding judge agrees and that the facial features of parties or witnesses who object to the presence of cameras be obscured.
Lippman said he hoped his proposal would renew a "robust public dialogue" on cameras in the courtroom that has been dormant in recent years.
Following his speech, the chief judge said it has been 17 years since the televised O.J. Simpson murder trial in California but that critics in New York continued to be "traumatized" by the excesses of that trial.
"We have to educate people about the critical work that goes on in the courts," Lippman said. "They have a right to know about it."
In the past, opposition to cameras has chiefly come from Democrats who control the Assembly, and they seemed to remain in opposition yesterday.
"I haven’t heard anything different that we heard 10 years ago, as far as that goes," Assembly Speaker Sheldon Silver, D-Manhattan, a cameras-in-the-courtroom opponent, said yesterday.
Assemblywoman Helene Weinstein, a Brooklyn Democrat who chairs the Assembly’s Judiciary Committee, said advocates for crime victims and witnesses have not been satisfied in the past by protecting their identities on camera through the use of "blue dots" or other methods of obscuring their faces.
"We have to dust off those files and look at it again," said Weinstein, who also attended Lippman’s address.
• Pointed out that the Administrative Board of the Courts has adopted recommendations by his Task Force to Expand Access to Civil Legal Services to change the aspirational goal for lawyers to provide 50 hours of pro bono service a year instead of 20 (NYLJ, Dec. 7, 2012).
Lippman (See Profile) said the administrative board also has adopted a new requirement that lawyers begin to self-report how many pro bono hours they provide and how much money they contribute to pro bono providers.
"Lawyers want to do the right thing and I think by making them report, they’ll either put in the hours that they do or, if they’re really sheepish about it and they haven’t put in enough, they’ll put in the big contributions to a legal services provider," Lippman said after his speech.
• Announced a committee to develop a pilot program that would allow people who cannot afford a lawyer to receive "low-cost" guidance from qualified non-attorneys on simpler legal matters. The committee will be chaired by Roger Maldonado of Balber Pickard Maldonado and Fern Schair of Fordham University School of Law.
• Promised to file legislation to require that the lender’s attorney in a mortgage foreclosure action file a certificate declaring that there is a reasonable basis to begin the action at the initial filing of the summons and complaint rather than with the filing of a request for judicial intervention. This is aimed at the "shadow docket" of foreclosures that has developed in recent years.
• Announced the appointment of Robert Haig of Kelley Drye & Warren as chairman of a permanent Commercial Division Advisory Council that will review the recommendations of a recent task force (NYLJ, Jan. 24).
@|Joel Stashenko can be contacted at email@example.com.