Since New York state passed a major bail law in 2019, the day-to-day court operations at Otsego County have been turned upside down, according to district attorney John Muehl.
On some days, 20 cases could be scheduled on a city court’s calendar and only five defendants would show up. The rate of failure to appear in court has increased almost tenfold, Muehl said.
The 2019 bail law eliminated cash bail for most misdemeanors and nonviolent felonies, including most drug trafficking offenses. In those cases, defendants are released without paying any money, sometimes on supervised conditions such as electronic monitoring.
“Our drug dealers come from New York City, Albany, or Utica, and they have no ties to our community whatsoever. After they were released, they just never came back to court,” Muehl said.
Drugs have long been a problem in rural Otsego because of the high demand at two local colleges.
A new discovery law was also passed in 2019 that requires prosecutors to disclose evidence to defense counsel in much shorter time frames.
“Confidential informants no longer want to help us because they fear their information will be turned over to the defense. The law has pretty much legalized the sale or possession of drugs in our county,” he said.
His office would typically prosecute 75 to 80 serious drug trafficking or possession cases a year. In the past two years, his office prosecuted only two.
Eliminating cash bail for most drug trafficking offenses is also responsible for rising crime in New York City, according to Putnam County District Attorney Robert Tendy.
Before being elected as district attorney in 2015, Tendy had worked in New York City’s Manhattan District Attorney’s Office for four years and as a defense attorney for another 20 years.
“Narcotics use is a real driver of criminal behavior. It leads to theft, it leads to assault, it leads to grand larcenies, it leads to burglaries and robberies,” Tendy said.
“As long as we continue to release low-level drug dealers, crime is going to continue to skyrocket.”
With the proliferation of lethal drugs such as fentanyl, narcotics use also leads to deaths, he said.
When he was a defense attorney, he represented many young clients with serious drug addiction and on the edge of losing their lives. The best thing he did for them was let them stay in jail while their cases were pending, he said.
He would make deals with parents and district attorneys to make that happen. “I can represent your daughter, but you must promise me that you will not bail her out,” he would tell the parents.
A lot of times, after a few months in jail with no access to drugs, his clients started to return to normalcy and think for themselves.
Offense Versus Flight Risk
Since the bail law went into effect, New York governors and lawmakers have attempted to fix it twice.The last attempt, led by Gov. Kathy Hochul early this year, allowed judges to set bail in a few more offenses or consider more factors, including gun sales to minors, repeat offenses where a person is harmed, and repeat property theft.
Both Muehl and Tendy said the change failed to address the root problem of the bail law.
At the heart of the 2019 bail law, they said, is a systematic shift from a flight-risk-based standard to an offense-based standard.
The law essentially divides offenses into two categories: bailable and non-bailable; for non-bailable offenses, bail would almost never be set regardless of flight risk.
“The purpose of bail is to ensure that the defendant returns to court as directed, so basing bail on the crime that was committed is foolish. It is the individual, not the crime that he has committed, that decides whether or not he is going to return,” Muehl said.
In practice, setting bail on flight risk also allows judges to consider the seriousness of offenses as well as the threat level of defendants, Tendy said.
“Serious offenses mean serious consequences, so prosecutors can argue in front of a judge that because the potential consequences are so serious, the defendants have a flight risk and bail should be set,” he said.
As for defendants who are likely to commit new crimes while their cases are pending, they most likely have no regard for the law and have a history of not consistently coming back to court as directed. In those cases, prosecutors can recommend bail based on flight risk too, he said.
“So all that gets into the mix of what a flight risk is. That is why it was a very good standard to determine whether a person should be held in,” he said.
But the old law wasn’t perfect, and he’s not against change; just that the reform New York has now is the wrong kind of reform, Tendy said.
“I think legislators need to realize district attorneys are also very concerned with criminal justice reform and desperately want to make common sense suggestions,” he said.
“But instead of talking to us, they listened to so-called experts in think tanks who have agendas or theoreticians who deal with statistics.
Adding Dangerousness Into the Mix
Suffolk County District Attorney Raymond Tierney said the kind of reform he would like to see is to allow judges to consider danger levels.
“What the lawmakers are trying to do is to fix a problem that they really cannot fix, unless they rewrite the law from scratch and say that judges can consider dangerousness in setting bail,” he told The Epoch Times.
“The clearest, easiest standard is dangerousness. If a person is selling heroin laced with fentanyl, which has resulted in a number of overdoses, that person is clearly dangerous and should be held in [jail].
“It’s an easy standard to meet. It is also easy from a proof perspective—I don’t have to rely on fingerprints and testimony from out-of-state witnesses that I must get in 24 hours.”
Tierney said he got the argument how flight-risk standard also considers the level of danger offered by a defendant, but he thinks it a skewed logic and not as clean-cut as dangerousness.
Under the current bail law, there are still ways for prosecutors to hold dangerous defendants behind bars, but they are onerous, time-consuming, and doing them crowds out other important tasks, he said.
In 2021, Tierney campaigned on the bail law issue, promising to lobby legislatures to repeal the 2019 bail reform. He won the election by 15 points against Democratic incumbent Timothy Sini, becoming the first Republican prosecutor to serve the county in 20 years.
Suffolk County lies east of New York City and covers the eastern end of Long Island.
Apparently, lawmakers in Albany didn’t heed his advice in the last legislative session. He said he would continue to sound the drum while enforcing the law with the rules he is given—however difficult it may be—to keep people safe.
“I’m going to keep talking about how we had to arrest a drug dealer—who was selling deadly fentanyl—three times before we can finally hold him in on bail," he said.
“We should have been able to argue dangerousness at the first overdose death so that he wouldn’t be released back into the community and hurt others.”
For Muehl, however, the laws that he’s given have made it impossible to do his job.
After serving 18 years as Otsego County District Attorney, Muehl is not seeking reelection. Had it not been for the bail law, he would have run for one more term, he said.
“I’m of the opinion that we are living in an age where most of the legislatures dislike law enforcement and district attorneys. They don’t pay attention to us or hear what we have to say,” Muehl said.
“Eventually, it will come around, and people will vote lawmakers in who are going to change these laws, but it is going to take a while.”
