Closed-Door Negotiations Could Result In Change To Controversial NY Bail Reform Measure

Gov. Andrew Cuomo and State Senate Majority Leader Andrea Stewart-Cousins reportedly met behind closed doors this week to discuss the much-maligned and oft-criticized newly enacted bail reform laws.

The two were reportedly looking to make potential changes to the law before the New York State budget has to be signed into law on Wednesday, April 1.

As of Wednesday, Jan. 1, thousands of inmates throughout the state were put back on the streets due to Cuomo’s bail reform legislation, which marked the end of cash bail for misdemeanor and non-violent felony offenders that were previously incarcerated.

Previously, prosecutors would make the determination whether to make a bail recommendation or have a suspect released, and a judge would make a determination. 

Under the new law, any non-violent felony offender is released without bail.

A recent Siena College poll found that only 33 percent of New Yorkers still support the new bail laws. The poll found that 59 percent say that the elimination of cash bail for most misdemeanor and “non-violent” felony crimes is bad for New York.

“Support for the new bail law – which took effect in January after passage as part of the budget last year continues to plummet. In April, New Yorkers thought the new law would be good for the state by 17 points. 

"Last month, voters said the new law is bad for the state by a margin of 12 points. Today, that margin for thinking the law is bad for New York has bulged to 26 points,” Siena pollster Steven Greenberg said.

New York’s chief judge, Janet DiFiore spoke out against the reform this week in her annual state of the judiciary speech.

“At this moment, New York — alone in the nation — does not allow judges the discretion to consider the critically important factor of whether or not a defendant poses a credible risk of danger to an identified person or group of persons.”

“Judges used to have some discretion on whether or not an individual should be held on bail,” Suffolk County Sheriff Errol Toulon, Jr. said. “Now, it is black and white - no bail for these crimes, regardless of the impact on the community. The offender will be given a court date and told to come back for court.”

Under the new legislation, the following have been deemed “non-violent:"

• Third-degree assault;
• Aggravated vehicular assault;
• Aggravated assault upon a person under the age of 11;
• Criminally negligent homicide;
• Aggravated vehicular homicide;
• Second-degree manslaughter;
• Unlawful imprisonment;
• First-degree coercion;
• Third and fourth-degree arson;
• First-degree grand larceny;
• Criminal possession of a weapon on school grounds or criminal possession of a firearm;
• Some drug offenses involving the use of children;
• Promoting an obscene sexual performance by a child;
• Possessing an obscene sexual performance by a child, and;
• Promoting a sexual performance by a child.

The reform has come under fire from both the community, some law enforcement agencies, and elected officials, who believe that Cuomo should revisit the law for possible changes in the legislation.

“Certainly, all the attention this new law has gotten across the state has had an impact with voters and it is clear that a sizable number of New Yorkers, who were optimistic that the new bail law would be good for the state, now believe the law is bad for New York,” Greenberg added.

“The Siena Poll has made it clear that much work remains needed to broadly educate the public on the benefits of pretrial reforms, and that is exactly what New Yorkers United for Justice will continue to do for the long haul, NYUJJ Chief Strategist Khalil Cumberbatch said in defending the reform.

Toulon noted that “inmates often detox upon entering (jails), coming off of drugs and alcohol in a safe environment. They can then begin addiction programs, therapy programs, high school equivalency classes, specialized youth, and elderly housing areas, and more. If these offenders are not remanded by the courts, the chances of them entering a program are very slim.”

“It is not a rollback,” Stewart-Cousins noted. “If anything it would be a rollback on cash bail.”

Advocates for anti-bail legislation noted that pretrial detention increases the likelihood that a person will be rearrested, because “it worsens the root drivers of harm and crime: poverty, trauma, housing instability, unmet mental health needs, and untreated substance use disorders. Even holding someone pretrial for )two or three) days can increase the likelihood that certain defendants will commit new crimes before trial.”

Nate Khader, the Executive Director of the WESPAC Foundation noted that "the new reforms allow us to finally move beyond an unequal and racist system of justice that locked up countless innocent people who were too poor to pay bail.

“Despite the continued fear-mongering, these changes go hand in hand with making our communities safer. For too long we've wasted our money on filling jail beds rather than making common-sense investments in our communities that will actually address the root drivers of crime and violence, and save taxpayer dollars in the long-run. We need to keep moving forward, not backward."

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