Cohoes Judge Issues Order Challenging New York Bail Reform Laws

Quinn: It’s 1-800-LAW-1010. Paul Harding on the phone,  Martin, Harding & Mazzotti.

Cantara: Hey Paul, how are you doing?

Paul: Hey, things are well this morning. Good morning to you guys.

Cantara: We’re glad we have you because we’ve been going over this leading up to your phone call here, and we were kind of confused. It’s the story out of Cohoes last week where a judge orders a challenge, I think the first one, to the bail reform law. Before we get into that, do you know city court judge Tom Marcelle?

Paul: Well, you know, I have met him once or twice. He’s a real smart guy who was off to the federal bench. It didn’t work out. So, he’s in Cohoes. So, in terms of judges, he’s a kind of a judge’s judge, I guess.

Cantara: So, does it surprise you that he’s the judge to set up this first legal battle over the new law?

Paul: Well, we knew it was coming. You know, the judges who’ve in essence, lost their discretion when they look over the bench, they look down at someone who’s missed several court appearances throughout their entire life, and he doesn’t think they’re coming back, and he wants to ensure that that’s the case, and he can’t do it.

Quinn: Explain the logic behind what’s going on with the new law in that instance. And what the differences, you know, from before, because it’s a little confusing.

Paul: Sure. You know, the upside of the law was basically this, if someone’s indigent, and they don’t have any funds at all, and they do a minor crime, and you say, “Hey, $100 bail,” well, in essence, it’s a jail sentence, right? They’re going to go to jail until their case is heard several days later, or they may be in jail a few weeks because they don’t have the hundred dollars. Right? So, the genesis of it was sort of this fairness piece. But the legislation that came out probably went, well, by most accounts, went a little too far in terms of giving the judges no discretion. In most misdemeanors, there’s no bail now. In many felonies, nonviolent felonies including arson, robbery, no bail.

Cantara: Wow.

Paul: They don’t qualify. Yeah, you come to court, and you spin around, you go back out. You could… Domestic violence is another one. Many instances where you are arraigned, and then the judge can’t keep you even if he or she thinks that you’re going to be a danger to the person you were just a danger to. So, yeah, they went a little bit over the top here

Cantara: In the case of a Judge Marcelle, he had a guy who had a number of infractions and never showed back up.

Quinn: Never even went.

Cantara: So, he’s like powerless to keep this guy, and he knows he’s probably not going to show up. So, what happens now? What happens with what the judge did? Where does it go next?

Paul: Well, we went constitutional. So, there’s a thing called the separation of powers, going to bring everybody back to 10th grade, or…where you’ve got executive, so you’ve got the president, you’ve got legislative, folks that make the law, you got judicial, you got the judges, right? So, they’re supposed to all be separate, and they can’t really control each other. They’ve got the ability to affect each other, but they can’t control the way the other person conducts their job. He’s saying, “Hey, you take this out of my hands, I’m no longer the judge that I’m supposed to be constitutionally, and we’re going to see what the courts think about this.”

Quinn: Because they’re equal parts of the government, they can… It’s like them then passing it on.

Cantara: Put the ball into their court again. But what’s the time frame for something like this to, you know, happen?

Paul: It’s a percolating thing, right? So, it’s going to kind of work its way up, and eventually we’ll see our highest court, Court of Appeals looking at this. And then, of course, depending on which side is successful, it could go beyond to the U.S. Supreme Court. So, time-wise, nothing quick about this.

Quinn: Great news for unemployed crack addicts everywhere.

Cantara: The woman who pushed the 84-year-old lady down at the Price Chopper in Rotterdam, I don’t know if she should be in jail forever, but then I also don’t know if she should be out right now. And she’s out right now because…
Quinn: She’s leaving a little money [inaudible 00:03:49].

Cantara: …there’s no bail. You know what I mean?

Quinn: Yeah, right? Thank you, Paul.

Cantara: This is going to go on for a while, but we appreciate you straightening this out for us, Paul.

Paul: Absolutely. Anytime, guys.

Quinn: Paul Harding from Martin, Harding & Mazzotti. 1-800-LAW-1010.