New York’s bail reform law still has gaping loopholes, critics say. An alleged serial bank robber’s case might prove it

The case of an alleged serial bank robber has put New York’s new bail reform legislation back into the spotlight — a law that has already garnered equal praise as it has criticism.

The law, which went into effect on the first day of January, essentially no longer allows judges to consider pre-trial detentions and money bail for many misdemeanors and non-violent felony charges — a change that critics say is putting communities in danger.

Federal prosecutors stepped in this week to make sure Gerod Woodberry remained behind bars prior to a court appearance Sunday morning after he allegedly continued on a bank robbery spree just four hours after being released on earlier bank robbery charges.

The US Attorney’s Office for the Eastern District of New York asked a federal judge to consider a permanent order of detention for Woodberry until he appears in court, arguing he is both a flight risk and poses a danger to the community — something New York judges aren’t allowed to consider.

The 42-year-old was previously released because, under the state’s new law, Woodberry’s crime — a robbery — didn’t qualify for pre-trial detention, says US Attorney Richard P. Donoghue.

Woodberry had robbed or attempted to rob six New York City banks since December 30, Donoghue said in a news release.

“This robbery spree is unprecedented and it is made all the more so by the fact that he was actually arrested and released in the midst of his crimes,” the release says.”No sound, rational and fair criminal justice system requires the pre-trial release of criminal defendants who demonstrate such determination to continuously commit serious crimes.”

Lupe Todd-Medina, a spokeswoman for the New York County Defender Services who represent Woodberry, called Donoghue’s statement “deeply troubling.”

“One of the bedrock principles of that foundational document is the presumption of innocence for anyone accused of a crime,” the statement said. “Rather than recognize and honor this rightly lauded protection, this statement suggests that New York’s long overdue move away from massive wealth-based pretrial detention that discriminates against marginalized people of color somehow constitutes an ‘outright dismantling’ of the criminal justice system.”

“This is very misguided,” Todd-Medina said.

What the state’s new law does

New York’s legislation follows calls from criminal justice activists across the country for a bail system that doesn’t unfairly impact those who can’t afford to pay the amount for their release.

“Governor Cuomo and lawmakers have acknowledged the inequities in our state’s existing bail practices, highlighting the inherent injustice worked by money bail and its disparate harmful impact along the lines of race and class,” the American Civil Liberties Union of New York said in a news release.

The governor also defended the law saying earlier this month, “Justice was never supposed to be who has money in their pocket and who doesn’t,” according to CNN affiliate WLNY.

But it’s still a work in progress, he added.

“There’s no doubt this is still a work in progress, and there are other changes that have to be made,” he said. “We’re going to work on it because there are consequences we have to adjust for.”

Between eliminating cash bail for most nonviolent crimes and already disallowing judges from deciding whether an individual poses a threat to their community prior to release, many leaders in the state say New York’s laws are putting the public at risk.

Some of those nonviolent crimes include third degree assault, criminally negligent homicide, aggravated vehicular homicide, second degree manslaughter and promoting a sexual performance by a child, the Suffolk County Sheriff’s Office said in a news release. Suffolk County is about a two-hour drive from New York City.

In Seneca County — about 260 miles northwest of New York City — authorities arrested a 34-year-old man on charges of predatory sexual asssault, rape and endangering the welfare of a child. Those charges stem from an investigation which involved a child younger than 13 years old, the Seneca County Sheriff’s Office said in a news release.

The man was eventually released a day later in compliance with the state’s new bail reform laws, the sheriff’s office said.

Judges may still consider cash bail and pretrial detention for almost all violent felonies.

Concern over public safety

New York’s law drew comparisons to New Jersey’s 2017 reforms, which shifted the state’s system to a case-by-case bail decision in which judges evaluate whether individuals pose a danger to the community or pose a flight risk.

“To determine which release conditions are appropriate for each individual, police and judges undertake a standardized public safety assessment, which seeks to provide an objective and uniform measure of those two factors in each case,” according to New York University’s Brennan Center for Justice.

But that’s not the case in New York.

“Having dangerousness is at the crux, in my opinion, of what we would like to see changed with some of these laws,” New York City Police Commissioner Dermot Shea told WLNY.

That’s the same concern a county sheriff near the city shared.

“As we look at the effects of the ‘official’ enactment of bail reform, there are clearly serious issues with this state law,” Suffolk County Sheriff Errol D. Toulon, Jr. said in a statement. “Judges MUST have discretion to determine bail based on a criminal defendants’ likelihood to re-offend and cause further pain to his or her victims and the public at large.”

That’s what happened in Woodberry’s case, federal prosecutors say, as he allegedly continued a bank robbery spree after being released without bail on robbery charges.

But Woodberry’s attorneys think the law levels the playing field.

“We think our system is stronger when it honors fundamental fairness, treats the privileged and poor alike, and upholds the will of the people as reflected in the laws they enact through their legislators,” Todd-Medina said. “Like anyone else using these shopworn scare tactics to attack the rights of the vulnerable, this United States Attorney does a great disservice to the cause of justice.”