News Analysis Oct 26, 2020 2:28 PM EST

Provisions against cash bail have no place in the Heroes Act

Cash bail elimination is built into the Heroes Act, the second-round COVID relief bill that has been under contention in Congress since it was proposed in May.

Provisions against cash bail have no place in the Heroes Act
Libby Emmons Brooklyn, NY
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An 85-year-old woman was sexually assaulted and nearly raped in the laundry room of her Brooklyn apartment building. The suspect was a convicted felon who had multiple arrests under his belt, but at the time of the attempted rape, he was out pending trial, with no bail held. This crime is one of many that have been perpetrated by convicted felons who find themselves at liberty without bond, able to pursue their nefarious acts unhindered by consequences from the criminal justice system.

Speaking to constituents and media on Thursday from the site of that assault, State Assemblywoman Nicole Malliotakis, who is running to replace Max Rose in representing New York's 11 District in the US House of Representatives, spoke about this crime, and others that were committed by felons who had their freedom restored after arrests for violent crimes, without being held to account with bail.

"The blame for this crime rests squarely on the shoulders of the perpetrator and in the lap of the left-wing elected officials who have supported the bail reform legislation that has deconstructed our criminal justice system and puts dangerous criminals back on our streets," Malliotakis said.

"These are the same elected officials who have either voted to defund the NYPD or have shown support for this ill-conceived movement by marching in demonstrations or by cynically attacking those who stand with our police and believe in law and order."

Bail reform laws, which loosely summarized means there is no bail to be set that would hinder a person's ability to walk free between booking and trial except in the most egregiously violent cases (supposedly), went into effect before the pandemic.

For Malliotakis, her interest in representing New York's District 11 at the federal level has much to do with her not wanting these bail reform laws to be enacted nationally as her dedication to the community and residents of District 11. The idea that the federal government could enact bold, sweeping criminal justice changes that would limit the abilities of judges to deal fairly and appropriately with criminals across the country seems far-fetched. Cash bail elimination is built into the Heroes Act, the second-round COVID relief bill that has been under contention in Congress since it was proposed in May.

Under Title XI of the Heroes Act, Prisons and Jails, there is a provision that addresses limitations on pre-trial detention. It reads that there shall be "no bond conditions on release," and that this shall commence on the start date of the "national emergency relating to a communicable disease is declared and ending on the date that is 60 days after such national emergency expires or is terminated."

It reads: "the judicial officer may not require payment of cash bail, proof of ability to pay an unsecured bond, execution of a bail bond, a solvent surety to co-sign a secured or unsecured bond, or posting of real property."

Further, "at any initial appearance hearing, detention hearing, hearing on a motion for pretrial release, or any other hearing where the attorney for the Government is seeking the detention or continued detention of any individual, the judicial officer shall order the pretrial release of the individual on personal recognizance or on a condition or combination of conditions under section 3142(c) of title 18, United States Code, unless the attorney for the Government shows by clear and convincing evidence based on individualized facts that detention is necessary because the individual’s release will pose a specific and substantial risk that the individual will cause bodily injury or use violent force against the person of another and that no conditions of release will reasonably mitigate that risk."

What that means is that, for the duration of the national emergency of the pandemic, judges must not require bail for release. The "Declaration of National Emergency by Reason of Certain Terrorist Attacks" is still in effect, and has been renewed every year since 2001. How long the "National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak" will go on is anyone's guess.

During the pandemic, there were many states and municipalities that determined that prisons and jails should be emptied of non-violent offenders. This was to curb the spread of the virus among prison populations. And to a certain extent, it makes sense to not have people in close proximity. Max Rose, the incumbent running for a second term to represent New York's District 11, is in favour of the Heroes Act, with the provision to prevent judges from using the tool of cash bail to control crime.

Limitations on a judge's ability to determine and levy cash bail are not in the bill merely to limit contagion. They are part of a broader, progressive policy to reform criminal justice without putting any measures in place to safeguard against the violent offenders like the one who sexually assaulted an elderly woman in the laundry room of her own apartment building in Brooklyn.

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