An enhanced supervision housing unit at Rikers Island jail complex. Photo: Seth Wenig/AP
If you ask Democrats in New York why they haven’t passed comprehensive criminal justice reform after winning a majority in both houses of the state Legislature for the first time in nearly a decade, they’ll tell you they want to do it “right,” rather than do it quick.
But when it comes to reforming, and most likely ending, the state’s system of monetary bail, doing it right has turned out to be a more arduous task than some may have expected.
Lawmakers have, literally, been going line by line through the state’s list of chargeable offenses and discussing when a judge should have discretion to keep a defendant in jail before their case is resolved.
It hasn’t been easy, Democrats say, but they’re closer than ever to introducing legislation that would end cash bail entirely in New York, which would become the third state to implement a large overhaul of its pretrial detention laws in as many years. State Sen. Michael Gianaris, D-Queens, said lawmakers are down to the granular details of the bill at this point.
Status of discussions on bail reform
“We’re getting closer every day and we’ve made good progress just this week alone,” Gianaris said. “I don’t view what’s going on as anything unusual, just going through the legislative process, especially when we have so many budget issues flying around at the same time.”
Gianaris, who sponsored a bill to eliminate cash bail last year, introduced an amended version of that bill this week that includes a more specific list of charges on which a prosecutor could seek to have a defendant held before their case is resolved. It includes a list of felony terrorism charges, for example, that weren’t in the previous bill.
“The question really just revolves around what the standards are for determining detention,” Gianaris said. “We’re getting down to the very narrow, difficult stuff.”
Democrats involved in negotiations in both the state Senate and Assembly have been deliberative in considering the views of lawmakers with different experiences in the criminal justice system. One such Democrat is Sen. Todd Kaminsky, D-Nassau, the only member of his conference who’s previously worked as a prosecutor.
“We want to make sure that it’s a well-thought-out decision,” Kaminsky said. “I’m just in the weeds on this stuff, trying to make sure we’re reforming the system while keeping the public safe, and ensuring judges have the tools they need when they see something that alerts them that there might be an issue.”
Kaminsky said his experience as a prosecutor gives him a unique perspective in the debate on bail reform that other members of the Legislature don’t have. He’s taken that experience with him into conversations on the issue to help craft a forthcoming bail proposal that’s expected to include more language on when a judge can require pretrial detention.
“I think there are certain crimes that shouldn’t apply to, where there should be a presumed release, but I think there are others that have far more gravity attached to them,” Kaminsky said. “I just think at the end of the day you want a judge to be able to look at all the different circumstances and make a determination that’s a just one.”
Similar discussions are ongoing in the state Assembly, where more than 100 Democrats from all areas of the state have a different stake in the issue based on their past experiences and the communities they represent.
Assemblyman Daniel O’Donnell, D-Manhattan, introduced the bill with Gianaris last year that would have eliminated cash bail. He expressed concern that, given how deliberative lawmakers have been with carve-outs during negotiations on the bill, they may end up with a less progressive piece of legislation.
“When there’s a movement and when there’s in the cultural zeitgeist a sense of an injustice, you have to fight to get the most you can because you take the helium out of the balloon and then you wonder why it doesn’t float,” O’Donnell said.
But other Assembly Democrats involved in discussions on bail don’t expect that to be the case. Assemblywoman Latrice Walker, D-Brooklyn, said Democrats agree on the intent of the legislation, but have differed on how, exactly, to get there.
“I think everyone has the same goal in mind — protecting the public interest, but also protecting the sanctity of our criminal justice process,” Walker said. “People bring their own unique perspectives and backgrounds. Everyone lends their lens to this conversation, because of course it's a very multifaceted discussion.”
Changes in amended bail reform bill
Walker sponsored her own bail reform bill last year, some provisions of which were included in the amended bill introduced by Gianaris this week. The legislation, aside from specifying more charges eligible for pretrial detention, would also set more stringent guidelines for judges to use when deciding if a defendant should be subject to electronic monitoring if they’re released before their trial date, for example.
Gianaris said the section on electronic monitoring wasn’t included to encourage judges to use it in place of pretrial detention. The goal, rather, would be to have a set of standards so that electronic monitoring isn’t overused, or used without justification.
“The original language was silent, which means there were no guidelines as to when that can be used, or if it should be used or not,” Gianaris said. “Speaking with advocates and the Assembly, there was some desire for some direction to be given when electronic monitoring is appropriate.”
The amended bill also includes a section that would require police officers to issue appearance tickets in place of an arrest in more cases. Gianaris said that, too, was the result of conversations with the Assembly.
Walker said she hadn’t reviewed the details of Gianaris’ amended bill yet, but that it appears to be the latest product of ongoing discussions between the Assembly, Senate, and the governor on bail reform. Lawmakers will likely amend the bill again as negotiations continue.
“We’re having three-way conversations to come up with what we believe is the best bill,” Walker said.
Timing of reform and the state budget
The best bill, some lawmakers have said, may not be the most expeditious bill. That position has not been well-received in recent weeks by Gov. Andrew Cuomo, who is pushing lawmakers to include criminal justice reform in this year’s state budget. The spending plan is due at the end of March.
State Budget Director Robert Mujica repeated in a statement Thursday afternoon that Cuomo would not approve a budget without a deal on bail reform.
“The budget must include a permanent tax cap, and bail reform, which is currently stalled in the Legislature but has been the governor's priority for years and promised by both houses,” Mujica said.
Walker said she would prefer bail reform be dealt with outside of the state budget, which is often used by Cuomo and the Legislature to leverage policy proposals against state spending. That kind of pressure shouldn’t be put on something as consequential as bail reform, Walker said.
“I always believe that we should never balance the budget on the backs of our communities. The conversation about the budget should be about the budget,” Walker said. “If the conversation for us is to get away from money with respect to bail, then let’s take it out of that context totally.”
Gianaris said he’s not opposed to having bail reform in the budget, but that the Legislature could also act on a bill before the spending plan is due. That would take it out of negotiations on the budget altogether, assuming Cuomo approves whatever bill the Legislature sends to him.
“I’d like to see it as quickly as we can get it done, and if we get it done outside the budget sooner, that would be great,” Gianaris said.
Other Democrats have speculated that the issue will be resolved after Cuomo and lawmakers deal with the state budget, though advisers to Cuomo have said they’re not confident it will get done outside the spending plan.
Stakeholders have different positions on the timing of bail reform, and whether it should be included in the state budget. Rena Karefa-Johnson, director of criminal justice reform in New York at FWD.US, an advocacy group, said she doesn’t think either way would be better, but that lawmakers should approve it before the budget is due if it’s ready.
“I think the Legislature has shown they can come together and pass stand-alone bills quite quickly,” Karefa-Johnson said. “I think regardless of their individual feelings about inside or outside the budget, there needs to be more urgency about getting this done.”
The District Attorneys Association of the State of New York, meanwhile, has asked lawmakers to work with it on what charges should be eligible for pretrial detention, but doesn’t have a problem with presumptive release for most low-level crimes.
If lawmakers don’t pass criminal justice reform in some capacity this month, they’ll have until the middle of June to resolve the issue before they leave Albany for the year.
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