As bail debate persists, data shows few rearrested in Buffalo for violent felonies

In 5,092 cases, defendants left the courthouse without a judge setting any bail. That's 44% of the nearly 12,000 overall number of cases. 

Of the 5,092 cases, 120 people were arrested on a violent felony charge while their first case remained open, according to The News' analysis. Slightly more than 1% were rearrested on a gun charge.

Those numbers show the new bail rules are succeeding, say proponents of the changes.

"It's working exactly the way it's supposed to work," said Kevin M. Stadelmaier of the Erie County Assigned Counsel Program. "You're letting low-level offenders remain at liberty while their cases are being adjudicated. These are people who historically are not a danger to the community."

Erie County District Attorney John Flynn agreed the changes are producing the desired effects in most situations. Flynn, however, said the changes have allowed some dangerous individuals to quickly return into the community, he said.

"Where bail reform went too far was on the more serious violent crimes," Flynn said.  

The bail law changes remain a political hot potato across New York State. From New York City's Democrat Mayor Eric Adams to sheriffs across upstate, many have called for varying levels of change to the law that removed a judge's ability to require bail for people charged with nearly all misdemeanors and low-level felonies.

Over the past couple of weeks, Gov. Kathy Hochul has responded to the criticism, pledging to include changes to the bail law as part of a broader public safety plan in the state budget. The governor has said she wants to address what she called "the problem of repeat offenders."

Hochul also pointed to bail in gun cases, as well as other restrictions judges can impose for crimes involving guns.

But it is not just the felonies alarming some police officials.

Buffalo Police Commissioner Joseph Gramaglia said the changes put in place two years ago have allowed a small number of people to flourish as repeat offenders, sometimes to the extreme, in petit larceny cases, Gramaglia said.

In extreme examples, since Jan. 1, 2020, two men each has been arrested on petit larceny charges in Buffalo 36 times. Eleven others have more than 10 petit larceny arrests each, according to Buffalo police data.

Before the changes, people repeatedly arrested for minor thefts – typically those seeking to feed a substance abuse addiction – were likely to be referred to drug court after a few arrests, Gramaglia said.

Now, because of the bail changes, individuals can still be sent to drug court, but prosecutors have lost leverage to get them to participate because they can no longer be held in custody, he said.

"The judge has to release them to the same diversionary courts, but without the ability to mandate their appearance," Gramaglia said. "When a warrant is issued, they are brought before the court and must be released on their own recognizance again, so those in crisis are left with less services and continue to reoffend."

The data

The News analyzed data from the state Office of Court Administration for 11,672 Buffalo City Court cases from Jan. 1, 2020, through June 30, 2021, the first 18 months the new bail rules were in effect. It's the most recent data available.

The review revealed: 

• Being released on their own recognizance was the most common outcome at arraignments, followed by having the cases resolved at that point, which happened in about a third of cases.

• The data does not indicate the specific charges for which a person was rearrested, but includes the charge level: 12.2% were rearrested on a misdemeanor charge, 7.2% for a nonviolent felony charge and 2.8% for a violent felony charge.

• The most common types of initial charges for those released on their own recognizance were assault (20%), property crime (18%), drug crime (14%), larceny (9%) and unlicensed operation (6%).

• In 348 cases, or about 7% of those released on their own recognizance, a judge issued a warrant because the accused failed to show up to court.

• Judges set bail in 19% of cases, and a defendant was remanded – or held without bail –  4% of the time.

• Of those released on their own recognizance, 61 individuals, or 1.4%, were rearrested on a gun charge.

• Regardless of what happened at their arraignment, bail or no bail required, 224 people were rearrested for a violent felony. That's 2.5% of those released.

Of the 5,092 people released on their own recognizance in Buffalo, the state could not account for the rearrest status of 869 people.

The Buffalo City Court figures are in line with an analysis done earlier this year by the Albany Times Union, which found 2% of cases related to changed bail laws statewide resulted in a rearrest for a violent felony charge while the person had another case pending.

Fighting 'punitive' bail

The goal of the new bail rules, according to advocates, was to incarcerate fewer people awaiting resolution of their cases.

They wanted most people facing low-level criminal charges, especially those who could not afford to pay for their bail, to remain free while their cases proceeded in court. So the option of cash bail was eliminated for low-level offenses.

State lawmakers and then-Gov. Andrew Cuomo passed the changes in 2019, and they went into effect at the start of 2020. In April 2020, some changes were made that expanded when a judge could impose cash bail.

The original purpose of bail was to induce defendants to return to court, but in practice, bail became punitive, said Linwood Roberts, a Buffalo defense attorney.

"You had people that were basically being punished before they were actually tried and convicted of anything," Roberts said.

No matter how low bail may be set – even something like $500 – many people "just don't have it," he said.

For those stuck in jail, some sit there waiting for the matter to get resolved, possibly through a plea. For those who went to trial and beat the charges, they still lost many months of their lives being incarcerated when they shouldn't have been, Roberts said.

He said he was struck by the data showing most people released without bail return for future court appearances.

He also credited the two-day waiting period for judges to issue a warrant, saying most lawyers use that time to push their clients to make sure they show up in court.

Stadelmaier said he thinks the pandemic-related shutdown of courts, which left more cases being unresolved for longer periods, contributed to the rearrest rate.

Overall, the changes are working because people accused of crimes aren't sitting in jail, which would likely result in them losing their jobs, said TheArthur A. Duncan III, a Buffalo defense attorney. Instead, because of the reforms, they are out of custody where they can stay working and take care of their families, he said.

Duncan said he believes the only negative effect from the changes are that some repeat offenders, some of whom are taking advantage of the new rules, know they can't be held in custody.

"Most people are law-abiding citizens and everybody makes mistakes," he said. "And everybody doesn’t have the wherewithal when they're charged with a crime to raise bail."

The repeat offenders

Some political candidates or officeholders, as well as some law enforcement officials, blame the bail changes for increases in crime rates, though often citing only anecdotal accounts to support their claims. Proponents of the bail changes point out crime also increased in states that did not change their bail rules.  

But statistics provided by the Buffalo Police Department show cases in which individuals initially arrested for a crime that used to be bail-eligible have gone on to be rearrested repeatedly for felonies. 

Thirty-six people in Buffalo arrested on a third-degree burglary charge, a felony, had at least two subsequent arrests on felony charges.

Two of them each had a dozen subsequent felony arrests, according to the department.

Thirty-three people arrested in Buffalo on third-degree criminal possession of a controlled substance charge, also a felony, had at least two subsequent felony arrests. At the top of that list was a woman who had seven additional felony arrests, and two men with five each.

Seeing individuals repeatedly arrested frustrates officers who encounter them again, Gramaglia said.

Flynn said he believes a provision of the bail law that requires judges to set the least restrictive form of bail has let some people charged with more serious crimes to be released from custody.

James A.W. McLeod, a former Buffalo City Court judge, said state law needs to return more discretion to judges.

Judges are being told by the state they're wise enough to handle cases, but not wise enough to decide the conditions to place on defendants on a case-by-case basis, McLeod said.

The former judge said he favors having those issued appearance tickets be given a shorter time frame to return to court. And in cases when someone's been rearrested before they've gone to court on their initial arrest, a judge should have the discretion to set some sort of bail, McLeod said.

"It's little things like that that could be done," he said.

The lack of judicial discretion was cited by critics of the bail rules in the local case of an 18-year-old arrested eight times in less than two months in cases involving allegedly stolen vehicles.

In an op-ed published Wednesday in the New York Daily News, Hochul and Lt. Gov. Brian Benjamin said there are likely "far more significant factors" than the bail law accounting for the rise in violent crime, but "that doesn't mean the bail law as it currently stands is perfect, either."

They said judges should be allowed to set bail for repeat offenders "even if the crime would not currently be bail-eligible."

And for crimes involving guns or violent crimes, "we should make it possible for judges to set more restrictive pretrial conditions, based on concrete criteria," Hochul and Benjamin wrote.

Flynn on Friday announced he supported the governor's proposed changes to the bail law.

In a statement, Flynn's office summarized some of Hochul's recommendations, which include allowing judges to consider a defendant's criminal history, such as gun possession, so judges would not be limited to applying the "least restrictive" conditions when setting bail.

Another of Hochul's recommendations calls for giving police the discretion to deny an appearance ticket and make an arrest of a person who has previously been issued an appearance ticket within the last 18 months, Flynn said.