Bail reform will likely not be part of the budget deal Albany negotiates by April 1st. Republican Senate Leader John Flanagan said he and his members are focused on matters that have more immediate financial implications.
But Gov. Andrew Cuomo's proposal could still be tackled in the remainder of the spring legislative session, and it's got vocal supporters along with critics.
Cuomo's plan would do away with cash bail for misdemeanors and non-violent felonies. Defendants would either be released on their own recognizance or under non-monetary conditions, such as checking in regularly with a pretrial services agency (supervised release), travel restrictions, turning in a gun or wearing an ankle monitor. New York City already allows supervised release for many types of cases, though it's not widely used. With violent felony cases like attempted murder, Cuomo's plan would still allow judges to set bail, though they'd also be encouraged to select non-monetary alternatives.
A New Way to Jail People Pretrial?
The governor's proposal would also revise the existing process of remanding, or jailing, a defendant pretrial. Cuomo's plan would allow a judge to jail someone for five days in specific types of offenses: domestic violence, "serious violence," "witness intimidation," willfully failing to appear in court and committing a new crime while out on release.
"If the judge thinks you’re dangerous and you’re going to go out and hurt somebody, then he says I’m going to hold you," Cuomo told congregants at a church in Brooklyn recently.
Five-day detention would be followed by a hearing to determine if the person should be released with non-monetary conditions or remain in jail. Some legal experts support this and believe it's a fair mechanism. They include Jonathan Lippman, the state's former Chief Judge who chaired a commission on closing the jail complex at Rikers.
"It’s such a narrow carve-out, if a particular person is in jeopardy," he said.
Lippman called Cuomo's plan a "major step forward" in reducing the number of people going to jail by eliminating bail for most offenses. But public defenders are anxious about five-day detention because they believe it's vague and overly broad. Joshua Norkin, who coordinates the Legal Aid Society's Decarceration project, said Cuomo's proposal "creates a presumption of detention in certain cases which also doesn’t exist in the current law."
Domestic Violence
Domestic violence cases, regardless of whether they're misdemeanors or felonies, would all be eligible for five-day pretrial detention in Cuomo's plan. Currently, violating a restraining order is the only misdemeanor charge for which judges can remand a defendant. But they rarely do.
WNYC looked at 2017 city bail data that The Marshall Project obtained from the New York State Office of Court Administration. We then collaborated with the Center for Court Innovation, which recently published a report on domestic violence cases in New York City, to figure out which charges to include and how often they are associated with domestic violence.*
There is no such charge as domestic violence in New York. Instead, there are different misdemeanors and non-violent felonies associated with these types of crimes, most of which involve violating a court order, assault or harassment. Murder and attempted murder are classified as violent felonies, for which judges usually set bail or jail someone before their trial. Those would still be eligible for bail in Cuomo's plan.
Our analysis shows how seldom judges jail defendants before their trials in misdemeanor and felony cases associated with domestic violence. Currently, judges are only allowed to jail someone accused of a misdemeanor when it's violating a court order. But under Cuomo's plan, judges could jail someone for up to five days for any domestic violence charge and then hold a hearing. Judges are already allowed to remand people accused of felonies.
Yet, most defendants accused of felony charges related to domestic violence currently have to pay bail. The amounts can be $25,000 or more, a clear sign judges want to keep these people from being released. This is why it's hard to know how much of a difference Cuomo's five-day detention plan would make. If approved by the legislature, those defendants would also be eligible for release with supervision — an option that currently doesn't exist.
"If there is a strong supervised release program I believe judges will take that into consideration. I certainly would have when I was sitting on the bench," said Judy Harris Kluger, a former state judge and executive director of Sanctuary for Families, which works with domestic violence victims.
Kluger said she thinks supervised release should be an alternative to bail for those accused of domestic violence "on a case-by-case basis." She also said there should be "strong monitoring of an order of protection, safety for the victim and supervision for the defendants."
As for jailing someone for five days right away, Kluger isn't concerned about judges abusing their power. She noted that there are many different ways in which someone can violate an order of protection, for example.
"Making the phone call and saying 'don’t leave the house, I'm going to kill you' is one kind of violation," she explained. "Calling and saying 'I want to pick up my clothes at the house' is another kind of violation."
Too Broad or Not Broad Enough?
It's not just domestic violence cases that would be eligible for the five-day remand under Cuomo's proposal. Prosecutors could also request it for cases when a person is rearrested, even for something like turnstile jumping, as well as in cases of witness intimidation and serious violence. Because of the vagueness of those terms, public defenders and the New York Civil Liberties Union fear people who are now released could wind up being detained pretrial.
The Brooklyn and Bronx district attorneys support Cuomo's bail proposal, with Brooklyn D.A. Eric Gonzalez commending it for "considering risk in limited cases where safety may be jeopardized." However, Manhattan District Attorney Cyrus Vance's office noted that the five-day detention would not apply to cases such as forcible touching or even conspiracy to commit murder.
The Queens and Staten Island D.A.'s cited objections raised by the District Attorneys Association of the State of New York, which cited other cases that should be eligible for five-day detention. One example is the defendant who is addicted to heroin and who could be spared from an overdose death.
Scott McNamara, the D.A. for Oneida County and president of the District Attorneys Association of the State of New York, said he was extremely worried about ending cash bail and letting so many types of defendants qualify for pretrial supervision. As an example, he cited someone from New York City who sells heroin laced with fentanyl in an upstate town.
"It would be the local county where the crime took place, it would be their responsibility to find that person in New York City," he explained. "It's very costly, especially to some of the smaller counties."
In upstate New York, bail is used far more often than in New York City. One study by the state's Division of Criminal Justice Services found bail was set 42 percent of the time in certain communities compared to 25 percent of the time in New York City.
McNamara acknowledged state's bail system is flawed and sends too many poor people to jail because it doesn't do what it was meant to do all along: consider an individual's ability to pay. This was written into the statute almost half a century ago, along with different forms of bail besides cash and insurance company bonds. But these are rarely used.
"Our bail statute right now is very progressive," he said, adding it just needs to be enforced.
Data analysis from WNYC's Data News Team, including Rhyne Piggott, Jenny Ye and Lylla Younes. Additional data analysis from Anna Flagg of The Marshall Project.
*Methodology: WNYC filtered the data to A, B and Unclassified Misdemeanors. We excluded cases that would not have continued after arraignment, including those that were dismissed or where the defendant pled. WNYC consulted with the Mayor’s Office for Criminal Justice, which does its own tracking. The bail data covers 2017.