ABC Statement on Justice McLaughlin’s Letter on Bail Reform in New York

We’ve never seen a sitting judge issue a public rebuke of his or her state’s chief judge, but that’s exactly what’s happening in New York State right now — on the issue of bail “reform.”

We’ve attached the public letter that NYS Supreme Court Justice Edward J. McLaughlin penned after reading about Chief Judge Jonathan Lippman’s proposed changes to bail in New York. His letter prompted the influential New York Post editorial page to call Judge Lippman’s proposals “idiotic.”

Justice McLaughlin is no novice. He’s spent 32 years on the bench in Manhattan, appointed by both Democrats and Republicans. Before becoming a judge, he served as a Special Assistant Attorney General in the New York AG’s Anti-Corruption Special Prosecutor’s Office, and as a Manhattan prosecutor. Now he sits on the front lines of the state’s court system.

Justice McLaughlin makes five key points:

1. Any problems with New York’s bail system are NOT the ones Judge Lippman is holding his news conferences about. Judges make individualized decisions concerning defendants and are required take into account their financial resources when making that decision.

2. Rather than strengthening the legal process, Judge Lippman’s ideas would weaken it. Judicial independence and the rule of law are weakened when bail decisions must adhere to “preordained” administrative or political goals, as opposed to factors pertinent to each particular case.

3. To criticize judges and suggest they fail to follow the law when bail is set “too high” opens the door to counter-arguments that bail is set “too low,” especially in New York City and elsewhere where the number of people who fail to appear vastly exceeds those incarcerated pending trial. The same line of reasoning leads to the opposite conclusion, and probably one that is equally as dangerous. We believe it’s a much smarter idea to trust that judges follow the law and make the best decisions under the facts and circumstances of each case.

4. The notion that bail should be “reformed” based on the “bail-is-set-too-high” theory lacks any real supporting facts or empirical data.

5. Legal ways exist for challenging bail that a defendant believes is too high. Administrative agencies should not interfere with the judicial process and instead allow those for whom bail has been set to high to have their day in court under the existing process.

Justice McLaughlin’s letter is available here.