In his State of the State speech Wednesday Jan. 3, Gov. Andrew Cuomo moved to end cash bail for people facing misdemeanor and nonviolent felony charges as part of a criminal justice reform proposal package.
Other aspects of the package include a push for speedy trials, a ban on asset seizures in cases where there has been no conviction, a disclosure of evidence at discovery and a campaign to make it easier for former convicts to get a job after leaving prison.
“Let’s be painfully honest, the truth is that our lady justice is still not colorblind and her scales are still not balanced,” Cuomo said. “Our bail system is biased against the poor… if you can make bail you are set free and if you are too poor, you are punished.”
The issue of bail reform is close to a some state representatives such as Sen. Michael Gianaris of Queens, who told The Alt that in his time representing the area surrounding Rikers Island, he has “a real sense of the problem.” The senator has been a long time critic of the cash bail system, most recently reissuing his call for its elimination in July 2017.
“[Cash bail] turns the principles of the justice system on its head. It imprisons people who can’t buy their freedom before they are even convicted of a crime,” Gianaris said.
“There is certainly room to do something. On principle, poor people should not be sitting in jail if they can’t afford bail,” Schenectady County DA Robert Carney said.
“No one wants to see something happen like the Rikers Island case,” Carney added in reference to the case of Kalief Browder. The 16-year-old spent three years on Rikers Island–nearly two in solitary confinement–awaiting trial after he was accused of stealing a backpack. He committed suicide shortly after his release, at the age of 22.
Cuomo referenced Browder’s case in his address, telling his brother Akeem Browder who attended the speech, “Your brother did not die in vain…he opened our eyes to the urgent need for real reform.”
To reform the system, the governor proposed holding a person only if a judge finds that the individual is a “significant flight risk” or real threat to public safety. If so, the person would be held in preventative detention. If not, the person would be released “on their own recognizance.”
This criteria has drawn attention from some criminal justice representatives such as Albany County public defender Stephen Herrick.
“The opportunity for a felony judge to consider whether there is a valid, real threat to public society is long overdue,” he said, specifying that the system would work best if there were specific, measurable behavioral guidelines that could be laid out for reference.
Herrick has had the opportunity to look at the issue from both sides, having spent 22 years as a judge–serving both Albany city and county courts–before taking his latest role of public defender.
“I’ve used monetary bail because it was the practice. If you went to request something like a partially secure bail bond, the clerk’s office wouldn’t know what that was,” he said.
Herrick believes the elimination of cash bail could truly change the way the criminal justice system is run on a case to case basis.
“It really does make a difference whether a person is in or out when it comes to preparing a case for trial,” Herrick said, explaining that a person who is out is able to spend more time with their case and can provide their defenders with materials and paperwork with greater ease.
While some criminal justice representatives are glad to see the proposal for cash bail elimination gaining momentive in New York, there is also a lingering wariness concerning the lack of detail in Cuomo’s speech and associating press release.
“We need the language, the specifics are more important,” said Gianaris. “Even a half solution could make it worse. We have to make sure what we’re working towards is actually progress.”
Carney has also expressed concern regarding the language of the governor’s proposal, explaining that a lack of collateral like cash bail may not discourage repeat offenders or hold people who have committed significant, though nonviolent, crimes.
“We need to see the details,” he said. “there may be exceptions or clarifications.”
“We have concerns regarding victims–especially in domestic abuse cases or people who continually defy court orders (criminal contempt). There is also the issue of some non-violent offenses. We would certainly want to hold any high level drug dealers–heroin, fentanyl or opioid. That’s a real issue.”
Carney says he and other officials of the Criminal Justice Council met only weeks ago to make their concerns known. “Ultimately there’s no punishment for people who continually do it and it’s discouraging for law enforcement who may be out arresting the same people.”
There have been a number of suggested parties to oppose the cash bail elimination that include bail bond companies who profit from the current system, the traditionally more conservative NY Senate as well as state prosecutors–particularly those in rural counties who have limited court dates to meet, or highly concentrated urban areas with an overwhelming number of cases.
“It may increase court appearances,” Herrick said. “And it will be abused, but it’s a good thing overall.”
Sen. Gianaris added he is wary of any “fear mongering” that could be used to oppose the proposal, “Bail is intended to make people come back for their trial, not keep people off the streets.
Photo courtesy of Gov. Andrew Cuomo’s Flickr account