New York's About-Face On Bail Reform Wins Few Fans

In April 2019, New York's Democrat-led Legislature used the state's annual budget as a vehicle to eliminate cash bail for most misdemeanors and nonviolent felonies.

The reform made the Empire State's pretrial procedures some of the most progressive in the country when it took effect on Jan. 1. But last week, lawmakers tackled bail via the budget once again — this time walking back some of the previous year's changes by increasing the number of bail-eligible offenses.

The deal that passed the Senate on Thursday night and the Assembly on Friday morning makes crimes like second-degree burglary, promoting child pornography, vehicular manslaughter and several others bail-eligible once again.

In a statement Friday, a coalition of New York City public defender groups that includes the Bronx Defenders, The Legal Aid Society and Brooklyn Defender Services blasted the rollback, noting it would increase incarceration at a time when officials across the country are raising alarms about the risks of COVID-19 spreading unchecked in jails and prisons.

"These are not small tweaks; they have bludgeoned reform just as it was taking root," the coalition said. "Betraying the gains that New Yorkers fought many years to secure, lawmakers are sadly bowing to a cynical and baseless fear-mongering campaign."

Rafael Mangual, deputy director of legal policy at the Manhattan Institute, had lobbied for more extensive rollbacks in op-eds and policy briefs. He, too, was dissatisfied with the budget, albeit for different reasons.

"I don't really see how this makes things all that much better," he told Law360. "It just slightly increases the size of the pool of defendants who could be kept on bail, which is not anywhere near enough to close the public safety gap created by the 2019 reform."

Passed in April 2019 with bipartisan support, the reform was intended to level the playing field between wealthy defendants, who can afford pretrial freedom by paying cash bail, and poorer defendants, who often languish behind bars for months or even years before getting their day in court.

Only 10% of New York defendants — those accused of the most violent crimes — would be bail-eligible; the other 90% would be released, and if judges had concerns about those defendants, they could set restrictions like supervision or electronic monitoring.

But before the changes even became law, public pressure for reversing them began to mount.

In November, Queens prosecutors and Staten Island District Attorney Michael McMahon were blasting the reform as "poorly written" and "extreme" because they said it would hinder law enforcement's ability to prevent repeat offenders from threatening public safety.

Even U.S. Attorney General William Barr weighed in, traveling to New York City to personally announce that a woman accused of assaulting several Jewish people in Brooklyn after being released without bail would face federal hate crime charges.

In early February, when New York City Police Commissioner Dermot Shea attributed a 17% increase in serious crimes to bail reform, state Senate Democrats and Gov. Andrew Cuomo began circulating proposals to roll back the changes by giving judges more discretion in deciding whether to keep defendants in jail before trial.

As recently as March 31, Cuomo was willing to completely eliminate cash bail — including for felonies, which had been largely untouched by the initial reform — as long as judges could consider a defendant's "dangerousness" when weighing pretrial incarceration.

But those ideas proved to be too much for the New York Assembly and its speaker, Carl Heastie, who balked at introducing a level of judicial discretion that has never been allowed in the state. Judges have traditionally only been allowed to consider a defendant's likelihood of returning to court when setting bail.

Peter Goldberg, director of the Brooklyn Community Bail Fund, told Law360 that allowing a dangerousness assessment "would bake in implicit biases."

"There is no crystal ball," he said. "There is no way to determine — and hold someone pretrial based on — the likelihood of that person committing an undefined offense in the future. It is as anathema to notions of pretrial innocence and due process as money bail is."

Opposition in the Assembly seems to have won out: The budget approved Friday did not include the judicial discretion that law enforcement had lobbied for. Peter Kehoe, executive director of the New York State Sheriffs Association, said it was "one change that should've been made, but wasn't."

"A dangerousness standard is very common across the country," he said.

Another notable rollback in the budget involves discovery reform.

Before last year's changes, defense attorneys often received evidence on the day of trial, giving them little time to prepare; since January, prosecutors have been required to turn over evidence within 15 days of an arraignment.

After prosecutors lamented that the new timeline was drowning their offices in unnecessary work and even driving staff to quit, the budget passed Friday will allow prosecutors up to 35 days to produce evidence in misdemeanor and felony cases where a defendant was allowed to return home. They'll have just 20 days in cases where suspects are remanded.

Though both defenders and prosecutors seemed unhappy with the changes, at least one criminal justice reform group applauded the final product.

New Yorkers United for Justice, a statewide campaign for criminal justice reform led by two formerly incarcerated New Yorkers, described the rollback as a "measured result" that "succeeded in preserving the heart of meaningful bail and discovery reforms."

One of those two leaders, chief strategist Khalil A. Cumberbatch, commended the state government for "devoting time and consideration that millions of impacted New Yorkers deserve."

"New Yorkers United for Justice is a diverse coalition, and our members have a range of perspectives on the details of this revised legislation," he said. "We continue to support an iterative legislative process that strengthens laws over time. The adjustments made to pretrial reforms are reflective of that process."

--Editing by Aaron Pelc.

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