Gov. George Pataki, appearing recently at a ceremony with Chief Judge Judith S. Kaye of the New York State Court of Appeals, politely endorsed "judicial independence."
Then he pursued his aggressive attack on judges who release dangerous criminals on bail.That attack is politically promising. But it is also legally flawed.
The governor is addressing a problem of public concern, but not in a manner likely to solve it.
Mayor Rudolph Giuliani had it exactly right in his comments on the bail set in a recent rape case. The mayor said that he himself might have set a higher bail and might have even set bail calculated to be too high for an accused rapist to make.
But that doesn't mean, he said, that the bail actually set wasn't reasonable within the customary criteria.
Pataki surely knows that under New York law, for better or for worse, bail is not intended to keep dangerous people out of circulation while awaiting trial. It is supposed to release presumptively innocent people, under conditions intended to discourage flight.
The idea is to keep the unconvicted at liberty, where they can most effectively participate in preparing their defense.
If Pataki doesn't like this system - and I would share that sentiment - he should propose and promote legislation to change it.
A preventive detention law would involve a small change in legislation to allow judges to do openly what many already do covertly: take into consideration the likelihood that a defendant will hurt someone while at liberty awaiting trial.
The constitutions of eight states expressly allow preventive detention, and the New York State Constitution does not preclude it. In 1969 New York's highest court reaffirmed the principle that no one has an absolute right to bail.
As drafted, the state Criminal Procedure Law had a preventive-detention provision. Lawmakers deleted it in 1970. This can be fixed.
For a model of preventive detention, the governor could look to the Federal Bail Reform Act of 1984. The U.S. Supreme Court upheld its constitutionality in 1987 in a challenge by a New York gangster, Tony Salerno. His lawyers and civil libertarians argued that to deny him pretrial bail amounted to speculative prejudgment, the incarceration of the presumptively in-no-cent and "excessive bail" in disguise.
But the court held that denying bail to the dangerous violates neither substantive due process nor the Eighth Amendment's excessive bail clause.
Shouldn't all this encourage New York State to give judges the legal basis for holding a predatory defendant without bail?