Budget includes compromise on bail reform and judicial discretion

Photo courtesy of the New York State Senate Photography
Senator Sue Serino is pictured above at a press conference in November 2019 to speak out against changes to the state’s bail laws that have since been partially reversed in the 2020-2021 state budget.

As part of the new state budget adopted earlier this month, the governor and state lawmakers rolled back some of the controversial pre-trial justice reforms that went into effect on January 1, reinstating bail for many crimes and giving judges more options to use it.

Bail reform was a divisive issue, alienating liberal legislators — who saw it as a solution to a racist criminal justice system — from moderate Democrats and Republicans, who saw “cashless bail” as a public safety issue in their communities.

While some wanted to simply repeal the January 1st reforms altogether in the new budget, the two parties were able to compromise by including amendments suggested by law enforcement. 

“We added provisions to stop ‘unlimited chances’ by ensuring that a person who either commits a crime after being released on their own recognizance, is on probation or is on post release supervision [and could face cashless bail],” said Assemblywoman Nicole Malliotakis, R-Staten Island, in a press release on April 2.

“I am happy to have worked with the District Attorneys’ Association,  police unions, my colleagues and the public to demand common-sense changes to protect public safety. While more can still be done to make the law better, this is a big step in the right direction.”

Passed as part of the state budget in 2019, the original bail reform legislation eliminated pre-trial detention and cash bail for most misdemeanors and non-violent felonies in New York, beginning on January 1, 2020. In addition, it largely removed the discretion that judges had previously to detain individuals they considered a danger to society.

By eliminating bail for most violent crimes, bail reform made poor and rich New Yorkers more equal in front of the law, as many poor New Yorkers cannot afford to pay bail and languish in jail until their day in court — which often does not come quickly.

Bail reform kept thousands of people out of jail, which was the intent — 6,800 fewer people were incarcerated in February 2020 than in February 2019, according to the State Division of Criminal Justice Services.

But the new law was met with vocal opposition from police, district attorneys, many lawmakers as well as the public in many parts of the state.

On March 11, Senator Sue Serrino, R-Hyde Park; Senator George Borrello, R-Sunset Bay; and Senator Patrick Gallivan, R-Elma, held a repeal bail reform roundtable at Dutchess Community College.

“[Bail reform] has created a massive and tragic increase of crime across the state. In Jamestown … In the month of January [there was a] 72 percent increase of people who did not show up for their court date,” said Borrello. “For a small community, with a small police force to have to deal with that — it’s devastating. Not only from a public safety stand-point but from a budgetary one as well.”

Opponents of cashless bail challenged its ability to “catch and release,” where defendants are arrested and then issued an appearance ticket.

“Victims of domestic violence were not considered… Releasing an offender after an arrest- it emboldens offenders to continue committing acts of violence,” said Leah Feldman, the vice president of community programs for Family Services, a nonprofit social services group located in the Hudson Valley, at the repeal bail round table. 

“Victims who are not helped by the system are not going to reach out again… We would like the state to look at [cashless bail] and repeal it.”

Part of the controversy over the pre-trial justice reforms enacted on January 1 stemmed from changes to the discovery law. Prosecutors now have more time to disclose evidence to the defense attorneys and too limit certain types of evidence.

Now, discovery laws have been extended to 20 calendar days and allowed some information to be non-discoverable. 

The [amendments to] discovery provisions will also deny people facing criminal charges access to crucial and potentially exculpatory witness information. These are not small tweaks; they have bludgeoned reform just as it was taking root,” said the Bronx Defenders in a press release on April 3.

In the budget revisions, cashless bail reform was rolled back and a variety of felonies and other crimes became eligible for bail once again, including: money laundering in support of terrorism, burglary in the second when entering someone’s dwelling, criminal obstruction of breathing or blood circulation, assault in the third degree, arson in the third degree, grand larceny in the first degree, sex trafficking, failure to register as a sex offender and “bail jumping.”

Bail is also now an option for any felonies or class A misdemeanors committed by a person on probation or parole.


Legislative Gazette file photo
Akeem Browder, Kalief Browder’s brother, speaks in the Capitol earlier this session to urge lawmakers to leave the bail reforms intact.


Kalief Browder’s story serves as an example of how bail reform and the rollback of many of those reforms can affect real people in the state’s criminal justice system.

Browder, who was at the forefront of the bail reform movement, was accused of robbery, grand larceny and assault over stealing a backpack. Bail was set at $3,000 because Browder was charged while on probation at the time. 

Later, he was charged with second-degree robbery at his arraignment, according to CNN.

He stayed on Rikers Island for almost three years because he could not afford the bail and killed himself after sustaining mental and physical trauma from being on Rikers Island.

After changes made on April 2 to bail reform, committing a felony on probation is eligible for bail. In 2021, thousands of New Yorkers could be held in jail, facing the same inequities in the criminal justice system as Browder.

Lawmakers voted quickly to pass the 2020-2021 budget to bring relief to the COVID-19 epidemic. Some criticized the Legislature for rolling back cashless bail laws through the budget process as good government groups called for a “bare-bones” budget free of major policy changes.

“We were working with the District Attorneys Association regarding the problems with bail reform. Were some of those issues addressed with the additional crimes and the additional discovery? Yes. Do they go far enough? Maybe, maybe not,” said William Barclay, D-Pulaski, the minority leader in the Assembly. “[The budget process] hasn’t been transparent or how they came up with these additional [bail-eligible] crimes. I mean, it seems a little bit arbitrary.”

Expanding upon a list of crimes a defendant can be detained for will inevitably increase the jail population, stakeholders point out.

“Increasing the number of eligible sentences means that there’s going to be more people who are being held there just simply because they can’t afford to pay bail,” said Clarise McCants, a campaign director for Color Of Change, an online racial justice organization. “It’s really just unthinkable that Cuomo and the Legislature would roll-back [cashless] bail, especially at a time like this.” 

Health officials and stakeholders in cashless bail are saying that it is a bad time to be putting more people in jail. 

“In the midst of a deadly and growing pandemic, the New York State legislature just passed a bail bill that will result in thousands more people being jailed before trial in facilities that are quickly becoming epicenters of COVID-19,” said the Bronx Defenders in a press release on April 3. 

Today, the number of confirmed COVID-19 cases jumped to 202,208, while 10,834 people have died from the virus so far. The state is either at, or nearing the apex of expected cases, health officials say. 

Often referred to as “petri dishes” for viruses and disease, correctional facilities are on the front-lines of COVID-19 with little to no personal protective equipment, which vary by state agency.

Recently, a letter signed and sent by 5 senators and 35 Assembly members to Gov. Cuomo, Assembly Speaker Carl Heastie and Senate Majority Leader Andrea Stewart-Cousins said the spread of COVID-19 inside and outside of correctional facilities is perpetuated by the lack of hygiene products and personal space within these overcrowded facilities.

The New York City Board of Corrections reported that there are 210 confirmed inmates infected with COVID-19 and nearly 3,000 people incarcerated have been exposed to the virus.

The New York City Board of Corrections and the The New York State Board of Parole are releasing inmates who would be vulnerable to COVID-19 such as, elderly, sickly or non-violent inmates.

However, there is a lack of effort in correctional facilities both in informing the public of infected inmates and correctional officers across the state of New York.

In a virtual conference last week, Public Advocate Jumaane Williams and Borough President of Brooklyn Eric Adams spoke about the necessity for accurate, public information.

“We have full access to personal protection equipment. Why don’t we have it on the ground? That’s a question that has not been asked repeatedly,” said Adams. “Data allows you to adjust in a rapid fashion to a rapidly moving enemy. If you don’t have that real time data to allow you to adjust [and] move the necessary resources where they’re supposed to be moved. Then, you are not going to effectively help the people that need to be helped.”

On top of COVID-19 rapidly spreading through correctional facilities, employees and inmates still lack basic protections and procedures from the virus. 

According to Williams, there has been no unified message to workers at correctional officers to wear protective personal equipment. 

“There were, intentionally, decisions not made [about] Rikers Island or incarcerated people across the state,” said Williams. “We were talking about not just the people housed there, but the corrections officers and the staff. Recently the governor said, we don’t have time to deal with that. And that’s not an appropriate answer.”