Bail reform dominating Albany conversations in early session


Legislative Gazette photo
Assemblyman Harvey Epstein, D-East Village, stands in front of advocates for bail reform who do not want to see any rollbacks or repeals in the upcoming weeks.

Bail reforms passed in the 2019-2020 budget and took effect January 1. Since then, it has become one of the most contentious issues in Albany this session.

Critics of the reforms argue that the new bail regulations threaten public safety by letting potentially dangerous criminals back on the street. Supporters say it promotes the idea of innocent until proven guilty and allows low-level criminals to lead productive lives while awaiting trial.

The reforms were aimed at fixing the pre-trial justice system that often let wealthy but dangerous criminals free and kept poor, but relatively harmless New Yorkers behind bars.

However, after a six-week rollout, with widespread news coverage and some public outcry, it seems as if legislators are edging toward revising the controversial law in some way this session.

The bail reform eliminates pre-trial detention and cash bail for misdemeanors and most non-violent felonies with the exception of sex offenses and criminal contempt charges.

Cash bail is still imposed for those charged with violent felonies except in the case of burglary and robbery in the 2nd degree. In those cases, judges must consider the defendant’s flight risk when setting bail.

Since the law took effect on January 1, there have been nearly 100 cases of defendants being released without bail after allegedly committing crimes such as menacing, manslaughter, bank robbery, strangulation and endangering the welfare of a child, according to a running list of news stories compiled by Republican lawmakers looking to overturn the law.

As legislators are reportedly meeting behind closed doors to reform the laws, coalitions both for and against the bail reforms have held press events and rallies in and around the Capitol in recent weeks to make their case before lawmakers and the news media.

On February 4, advocates who support the bail reforms gathered outside the Senate Chamber in the state Capitol to address how they are necessary for a fair criminal justice system.

“The story that is not being told is that tens of thousands of New Yorkers are benefiting from the new law,” said Darlene Gates from 1199 SEIU, a health care union with members located across the east coast. “Families are being reunited, children are being parented and people are able to go back to work.”

Proponents for bail reform championed the new legislation as a way to bring socio-economic equality to the criminal justice system.

In 2016, a study conducted by the New York City Criminal Justice Agency reported that almost half of those convicted in New York City with felony and misdemeanor cases could not make bail and 40 percent of New Yorkers remained in jail until their court date.

“We are treating our prisons and our jails as warehouses for human beings as an excuse to just get rid of those we see as not worthy of coexisting with us in society,” said Senator Jessica Ramos, D-Jackson Heights. “And I am here to say not only that ain’t right but it needs to be fixed.”

Photo courtesy of the Assembly Republican Conference
Legislators, law enforcement and advocates gathered on the Million Dollar Staircase on February 4 to argue that the bail reforms are putting public safety at risk.

That same day, law enforcement officials, district attorneys and Republican legislators gathered on the Million Dollar Staircase in the Capitol to express their concern for public safety under the new bail reform law.

“The question is, where do you draw the line of somebody who should be kept in jail because they’re a danger to the community, to themselves or others,” said Robert Carney, the District Attorney for Schenectady County.

Those opposed to bail reform are concerned that defendants released with just an appearance ticket will target former victims.

“I’m trying to look out for the victims of crimes rather than looking out for the welfare of a potential perpetrator,” said Assemblyman Karl Brabenec, R-Westbrookville.

A Republican-backed bill (A.8855/S.6849) would completely repeal the bail reform legislation passed in 2019. This bill was referred to the Codes Committees in the Senate and the Assembly.

The bill is sponsored by Assemblyman Karl Brabenec and Senator James Tedisco.

“[criminals are] potentially committing additional crimes and there also could be a flight risk, or they’re not going back to court,” said Brabenec.

Legislators in favor of repealing bail reforms and new evidence discovery rules say these repeals are necessary to ensure a functioning criminal justice system.

Under the new law, the state’s discovery process now requires prosecutors to disclose all evidence against the accused within 15 days of the arrest, as well as providing the defense attorneys personal information about accusers and potential witnesses, critics say. These new discovery rules place an unrealistic burden on police departments, prosecutors and local governments, critics say.

“[Bail reform] was all done as part of the budget process, it was not done in consultation with practitioners in the criminal justice system, including the court system,” Carney said.

Opponents of bail reform also contend that implementing alternatives to cash bail, such as the use of ankle bracelets or home-arrest supervision, is resource-draining for law enforcement agencies.

“So they expect the counties just to be able to absorb all this additional new work of all these people that are getting released,” said Carney. “To do active monitoring is expensive because you have to have people working around the clock.”

Legislative Gazette photo
The rally on February 11 brought attention to the potential repeals that the democratic party itself has become split over.

The conversation on bail reform was yet to settle down even a week later. On February 11, another rally was held in an attempt to keep the new bail reforms intact. Again, on the Million Dollar Staircase, approximately 75 advocates held signs reading #NoRats (risk assessment tools); Don’t Roll Back on Justice; My Freedom is Not For Sale; #freeNY; and many other slogans associated with the bail reform laws.

The public safety argument was quickly rebutted by the lawmakers in attendance who say the news media, and Republican lawmakers, have sensationalized the stories of new crimes being committed by those released from jail.

“Don’t hide behind public safety,” said Assemblywoman Latrice Walker, D-Brownsville. “One thing I recognize is that since this law has been in place, 80,000 people, 80,000 new arraignments, have hit the courts across our state, but they choose to highlight 10 or 15 cases.”

The bail reforms have reportedly caused a divide between some Democrats who want to change the law based on public outcry and recent news reports and progressive lawmakers who want to leave the law intact and collect data over the long-term before deciding whether changes or a full repeal are necessary.

“The deep dark secret about what we did last April? Here it is: it’s working,” said Assemblyman Dan Quart. “For the first time in a long time, what we did in April changes the power structure.”

Assembly Speaker Carl Heastie, D-Bronx, seems committed to taking a wait-and-see approach, telling reporters after the rally, “no one has given me, you know, real, hard data.”

Proponents of the new bail law say the previous way punished those who could not afford bail with additional jail time and created a two-tiered justice system.

“We’re not about rolling back something that was a blemish on our society,” stated Assemblyman Walter Mosley, D-Brooklyn.

Lawmakers and advocates also met earlier on February 11 to discuss a proposed 2020 “Justice Roadmap” which looks at the larger picture for the criminal justice system, including proposed laws on “reducing unconstitutional and unnecessary stops and arrests; holding police accountable for civil rights infractions; reforming sentencing laws and protecting due process rights; connecting families; protecting the dignity and opportunities of incarcerated people; and fixing an unjust parole system and ending death-by-incarceration.”

“What happens if the Senate comes forward and does the proposed roll back? What happens to all those families and communities?,” asked Assemblyman Harvey Epstein, D-East Village. “We need to stand firm.”