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Experts: The new bail law must be repealed

After new legislation went into effect to end cash bail for mostly nonviolent crimes in New York, lawmakers and top law enforcement officials are calling for its repeal.

Under the new law, those arrested for misdemeanors and nonviolent felonies are given a desk appearance ticket rather than face a judge for an arraignment, where bail is traditionally set.

According to Suffolk County Sheriff Errol Toulon, 301 inmates were released in Suffolk County in the month leading up to the enactment of the new law. The individuals would have typically been held on bail or bond, depending on their criminal history and severity of the offense.

‘What is lost now is the discretionary ability of the judges to consider an appropriate bail or custody status’

Allen Smith, Riverhead Town Justice

Mr. Toulon, a Democrat, issued a statement Wednesday calling for amendments or repeal of the law.  “There are clearly serious issues with this state law,” he said, using four inmates released from county jail facilities and have a history of recidivism as examples. 

Among the inmates released, Mr. Toulon said, include 23-year-old Lonnie Pernell of Centerport, who was reportedly “in and out” of the Yaphank Correctional Facility five times in November and December for first-degree criminal contempt. Despite reoffending several times, Mr. Pernell was released on his own recognizance under the statutes of the new law. Dwayne Ross, 46, of Shirley posted bond in early December for second-degree strangulation and was arrested again two weeks later on a criminal contempt charge, the sheriff’s office said.

Mr. Toulon also pointed out that the new law permits the courts to accept partially secured bail bonds through the court system instead of securing the funds through a bail bondsman.

Sherrif Errol Toulon. (Credit: Kate Nalepinski)

Fidel Portillo, 39, of El Salvador had been held on $200,000 bail and $400,000 bond since July 2019 for first-degree rape and first-degree sexual conduct with a child but was released Dec. 30 after posting 10% of his bond and surrendering his passport, according to Sheriff Toulon. Mr. Portillo is due back in court Jan. 14. 

Dwayne Robinson, 33, from Amityville, described by Mr. Toulon as an alleged Bloods gang member, was also released after posting $5,000 bond for a second-degree assault charge.

In each of these cases, Sheriff Toulon said that, in the past, judges could have used this information as a guideline to set bail, or remand the defendant to be held without bail. “Judges must have discretion to determine bail based on a criminal defendant’s likelihood to reoffend and cause further pain to his or her victims and the public at large,” the sheriff said.

The sheriff also took issue with some of the crimes considered to be “nonviolent” in the eyes of the new law. They include third-degree assault, aggravated vehicular homicide, second-degree manslaughter, arson, criminal possession of a weapon on school grounds and criminal possession of a firearm, and promoting or possessing an obscene sexual performance by a child.

Mr. Toulon noted that the new bail reform laws keep many defendants from using services available to the incarcerated, from human trafficking help for victims to addiction programs, therapy and education. 

Back in Albany for the start of the 2020 legislative session, Assemblyman and former prosecutor Anthony Palumbo (R-New Suffolk) said taking discretion away from judges is alarming. “There should have been a plan with amendments presented today to members of the Legislature,” he said in a statement issued following Gov. Andrew Cuomo’s State of the State address Wednesday. “This too should have been one of the first things the governor addressed.”

Riverhead Town Justice Allen Smith. (Credit: Tim Gannon)

Longtime Riverhead Town Justice Allen Smith said, while he is sworn to uphold the new law, its creation was flawed. He agreed that the discretion should lie with justices.

“What is lost now is the discretionary ability of the judges to consider an appropriate bail or custody status,” he said, adding that he has further concerns over whether defendants released without bail will appear in court.

Proponents of the new law say that the traditional bail system has morphed into a way to keep poorer Americans and people of color incarcerated, even if they are ultimately found to be innocent in court.

Judges may still use cash bail and detain those who commit violent felonies including sexual misconduct offenses and domestic incidents. In some instances, judges can opt for non-monetary ways to ensure court appearance, such as electronic monitoring or the supervision of a pretrial services agency.