New York state's bail reform won't go into effect until Jan. 1, but the law may already be freeing more criminal defendants from pre-trial incarceration.
District Attorney Caroline Wojtaszek said starting about Dec. 1, her office will no longer seek bail in misdemeanor, non-violent felonies and other cases for which bail will not be permitted as a condition of release.
Her hope is to avoid a rush of bail motions by defendants who suddenly qualify for release.
"If the case is pending, I don’t see how a judge doesn’t release them if it’s one of the non-qualifying offenses," Wojtaszek said. "We’re trying to be proactive to avoid it as much as possible.”
But some county and city judges have already begun to consider the new law when setting bail, according to several local prosecutors and defense attorneys.
Niagara County Court Judge Sara Sheldon appeared to take bail reform into consideration recently when she agreed to impose bail on Shane Hescox, who had been held without bail since his arrest in May for running over his ex-wife with his pickup truck.
Hescox has been charged with second-degree assault and reckless endangerment in the May 17 incident in Wheatfield. Hescox was previously remanded because he absconded to Rochester after the alleged attack, and has prior convictions and failures to appear in court.
Sheldon on Wednesday agreed to allow Hescox's release on $25,000 cash or $50,000 bond, after Scalzo argued evidence showed the alleged attack could have been an accident.
But Scalzo said he believed Sheldon "split the baby," offering bail in advance of the law taking effect.
Sheldon said she doubted bail can be imposed after Jan. 1.
"You would have to demonstrate certain factors for me to impose bail," Sheldon said to a prosecutor.
"After the first of the year, there may be no bail," Sheldon said.
Scalzo said Hescox may be able to secure bail before then. If not, Scalzo said he "absolutely" plans to file a new bail motion.
The offense Hescox is facing, second-degree assault, is listed among the violent felonies for which judges can impose bail.
The law permits bail for most felony offenses classified as violent, with exceptions for second-degree burglary or certain types of second-degree robbery. In other words, home break-ins and forcible robberies that involve more than one perpetrator will result in appearance tickets.
The law also permits bail for certain "non-violent" felonies, including some crimes against children, some sex offenses, most terrorism-related charges, witness intimidation and evidence tampering, conspiracy to commit murder and felony domestic violence cases.
Bail will only be allowed in misdemeanor cases that involve a sex crime or a violation of an order of protection in a domestic violence case. No misdemeanor defendants may be remanded to jail without bail.
However, even defendants facing these charges could be released on recognizance or receive less restrictive bail.
Judges will no longer be allowed to consider a defendant's risk to public safety when imposing bail. A defendant's flight risk is the only factor courts can consider for bail.
"The only thing we could argue, the only issue for bail, is whether or not that person is likely to return to court," Wojtaszek said.
Assistant District Attorney Holly Sloma said by barring courts from considering prosecution evidence in assessing bail, the law will result in sex crime perpetrators "walking among the victim." She added most sex crime defendants do not have enough prior convictions to be eligible for a remand without bail.
“So many of sexual assault cases (involve defendants) with a not significant criminal history," Sloma said.
Courts will also have to consider a defendant's ability to pay and offer a third option for bail. This could mean bail-eligible defendants could be released on a partially or unsecured bond, meaning he has to pay a portion of bail upfront, but surrenders the full amount if he fails to appear in court.
"It's a presumption that the defendant, even with those qualifying offenses, would not be incarcerated prior to trial," Wojtaszek said.
The law describes several non-monetary release conditions to ensure a defendant shows up for court, such as pretrial services agencies, court appearance reminders and electronic monitoring. But Wojtaszek said such conditions have limitations; for instance, the county has 10 electronic monitors and lacks funding to purchase more.
Wojtaszek and Sloma are also worried about the crimes for which bail will no longer be an option. Among them: misdemeanor assault, imprisonment, criminally-negligent homicide, second-degree manslaughter, resisting arrest, nearly all drug-related felonies and making terroristic threats.
They estimated about 90 percent of defendants in Niagara County will be free on recognize until their sentencing.
"There are so many offenses that do not qualify for bail in New York State that would frankly shock the public," Wojtaszek said.
Domestic violence misdemeanor and "non-violent" felonies also will not be eligible for bail — unless the defendant has violated an order of protection. That means police will ticket and release defendants whom they arrest for obstruction of breathing, menacing (making threats), most stalking offenses or an assault that doesn't cause serious injury.
Wojtaszek said she fears the law will discourage domestic violence victims from contacting law enforcement. Domestic violence experts say victims often face the highest risk when they leave or report an abusive partner.
"Frankly, I’m afraid victims will not look to law enforcement for fear of making things worse," Wojtaszek said.
“Something terrible is going to happen because these situations were not contemplated before the law was passed," she said.
Bail reform proponents argue defendants' wealth should not determine whether they are incarcerated before trial. They also point out pre-trial detention can cause defendants to be fired from their jobs and spend months away from family members.
"Research shows that when people are held in jail while awaiting trial, they are more likely to become unemployed or re-involved in the criminal justice system in the future," State Sen. Michael Gianaris, who sponsored the bail reform bill, wrote in a joint op-ed published in TIME magazine. "New York’s money bail law is therefore fundamentally unjust."
"People who lack the funds to afford bail should not have their freedom taken from them and their futures compromised, while rich people can walk free," Gianaris wrote in the joint op-ed with soul singer John Legend.
Wojtaszek said she would support requirements that judges consider defendants' ability to afford bail or less restrictive means to ensure his appearance in court. She also said the district attorney's office does not request bail for defendants who aren't likely to receive a jail or prison sentence if convicted.
"However ... it was not fully contemplated by all of those effected by this law,” Wojtaszek said.
Impact on jails
Naturally, fewer defendants in pre-trial detention means fewer inmates at the Niagara County Jail.
Undersheriff Michael Filicetti said their office estimated the law will cause a 15 percent drop in the jail population, from an average of 350 to about 300 inmates. The jail has capacity for 500 inmates.
However, the jail population could eventually tick back up, because defendants who are free pre-trial would not get credit for time served if, upon conviction, they are sentenced to jail.
Filicetti said the office will assess the law's impact on the jail population and budget several months into next year.
"I want to see long-term what our population is going look like," he said.
The law might also result in more work for the sheriff office's two-deputy warrant division, which apprehends those who abscond from court.
Judges often issue arrest warrants for defendants who don't show up to court, especially if defense attorneys can't reach the defendant. The bail reform law also requires judges to wait two days after a defendant's no-show court date before issuing a warrant.
Filicetti said the office will "watch and evaluate" the law's impact on arrest warrants.
"Another concern is that, when appearance tickets are issued, the manpower it will take to find those individuals and ... bring them back into the criminal justice system could be quite substantial," Wojtaszek said. "But we won't know until we get there."