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Momentum Grows For Revisions To New York's Bail Reform Laws

Hans Pennink
An exterior view of the New York State Capitol in Albany, N.Y., in January.

The leader of the New York State Senate says it’s likely that changes will soon be made to the state’s new bail reform laws, which end most forms of cash bail for nonviolent offenses. Meanwhile the state’s chief judge also called for amendments to the laws.

Senate Leader Andrea Stewart-Cousins says a proposal in the Senate would end all cash bail, even for violent offenses. In exchange, judges would have more discretion to detain potentially dangerous defendants. Since the law took effect on January 1, law enforcement groups have highlighted select cases of repeat offenders going free under the new rules. Some Democratic senators in more conservative districts have expressed concern. But Stewart-Cousins, who spoke at an event at the Albany Times Union Hearst Media center, says don’t call the proposal a “rollback” of the laws. She says it can even be viewed as enhancing them.

“It is not a rollback,” Stewart-Cousins said. “If anything it’s a rollback on cash bail.”

She says judges will have a list of criteria to decide whether someone is too dangerous to release on their own recognizance.

“There’s going to be limited discretion with guardrails,” Stewart-Cousins said.

Judges would be allowed to consider factors like whether the defendant poses a flight risk. But she says judges would not be given complete discretion because New York could slide back to what she says was the inequitable system that existed before the bail reform laws took effect. 

“It’s not like ‘oh, I just have a feeling that you should be in jail,’” Stewart-Cousins said. “No.”  

Stewart-Cousins, the first African American woman and first woman to lead the Senate, defends the original law. She says most of the people who could not meet bail and were forced to spend weeks and even months in jail were black and brown, while wealthier white people have always gone free.

She has said cases highlighted by law enforcement where repeat offenders were released on their own recognizance has been “fear mongering.”

Meanwhile, the state’s top judge, Court of Appeals Chief Judge Janet DiFiore, is also weighing in in support of giving judges more discretion. In her annual State of the Judiciary speech, DiFiore praised the bail reform laws, saying the old rules “disproportionately harmed” those who could not afford to meet bail. But she says there have been some unanticipated and unintended consequences that need to be fixed.

“I believe that without compromising the purity of its purpose, the new legislation can be amended, and strengthened, to recognize a narrow exception allowing judges, after a full and fair adversarial hearing, to detain a defendant in those few and extraordinary cases where such a credible threat exists,” DiFiore said in her speech.

DiFiore says judges in New York City in recent years have already begun setting bail more sparingly, from 48% of cases in 1990 to 23% in 2018. She says there’s been a “conscience cultural change” over perceived unfairness in the criminal justice system.

Governor Cuomo, speaking to reporters on Wednesday, says he also thinks there should be some tweaks to the new law as part of the budget.  

“I have no doubt that there are consequences from that reform that will require additional reforms,” Cuomo said. “And we will be making them.”  

Assembly Democrats remain the lone holdout. Assembly Speaker Carl Heastie, who championed the bail reform laws last year, says he still wants more data before reversing any of the law’s provisions. Heastie, who holds bachelor’s degree in statistics and a masters in finance, says a report by the NYPD saying that crime spiked in January, is in dispute.

“One month’s worth of statistics is not enough of sample size to tell if it’s a spike, a trend, or a momentary happening,” Heastie said.

Lawmakers have about a month to make a final decision. The budget is due at the end of March. 

Karen has covered state government and politics for New York State Public Radio, a network of 10 New York and Connecticut stations, since 1990. She is also a regular contributor to the statewide public television program about New York State government, New York Now. She appears on the reporter’s roundtable segment, and interviews newsmakers.