For years, Democrats in the state Legislature have sought to restrict state courts’ use of cash bail as an unbearable burden for low-income defendants, only to be rebuffed by a Republican-controlled Senate.

With fresh control of the Senate, Democratic lawmakers and staff say they’ve been working feverishly toward a single bill that would not only eliminate cash bail, but also attempt to minimize the number of defendants judges can lock up while awaiting trial.

In lieu of cash bail, judges could impose non-monetary conditions intended to compel a defendant to return to court, like routine check-ins with a pretrial services agency, also known as supervised release. But they would also retain power to detain defendants behind bars in some circumstances — prompting concerns a bail ban could bring unintended consequences if not carefully constructed.

“The real risk with bail reform is that if it’s not done right, there’s a real risk of making things worse and not better,” said Sen. Mike Gianaris (D-Queens), co-sponsor of one of the measures under discussion, introduced in the Assembly by Danny O’Donnell (D-Manhattan).

“If pretrial detention is allowed in too many cases, too many people will be detained.”

Gianaris and other Democrats say they’re wary of the recent experience of California, which banned bail in 2018 — but enhanced judges’ power to order defendants jailed while awaiting trial. California’s law is now on hold pending a voter referendum next year.

Adding to the pressure is Gov. Andrew Cuomo, who’s pressing an April 1 deadline for a bail bill as part of a broader array of criminal justice reforms by yoking them to the state’s $175 billion state spending plan. Cuomo’s threatening to not accept a state budget unless it includes the measures — among them changes to the state’s laws on criminal discovery and speedy trials.

Cuomo has proposed his own measure to end cash bail, which would give courts considerable leeway to detain individuals before trial.

Lawmakers are discussing what standard judges should follow when determining whether someone should be detained ahead of their scheduled trial — and under what circumstances they should be allowed to order pretrial detention at all.

“Everyone agrees that violent felonies should be included and that misdemeanors should not be included, so we start from there,” said Gianaris. “There are some crimes that fall into a gray area that we’re working through.”

It’s the gray area that has district attorneys from around the state concerned.

“If someone is arrested for subway grinding or forcible touching and that person has a record of having done that in the past, that’s somebody that I need to take seriously even though it may be a misdemeanor,” said Manhattan District Attorney Cy Vance Jr. “We believe we should be able to ask for detention for those cases.”

Listing every statute for which a judge could order pretrial detention in the bail reform proposal could easily become “unwieldy and confusing” for the court, defense lawyers and prosecutors, Vance said.

“I think we all need to have a certain flexibility built into a system where we eliminate cash bail so that the judges, defense and the prosecutors can achieve the right results without necessarily being constrained by a list of 50 [statutes] that we agreed upon simply because we were compromising,” Vance told THE CITY.

Prosecutors Demand ‘Dangerous’ Option

Other district attorneys, including Brooklyn’s Eric Gonzalez, want judges to have the power to decide whether to detain a defendant as a public safety risk.

“The ability of our courts to consider the dangerousness of a defendant is essential to balancing the possible negative impacts of ending a cash bail system,” Albany County District Attorney David Soares, who heads the District Attorney’s Association of New York, told THE CITY. “This examination is essential to public safety.”

Vance, Gonzalez and Soares have been outspoken about their support for ending cash bail, sending a joint letter to Cuomo and legislative leaders earlier this month.

Soares notes that many other states allow judges to detain defendants they deem dangerous.

Criminal justice advocates oppose dangerousness as a deciding factor in pretrial detention because they say it leads to disproportionately high preemptive incarceration of minorities and poor individuals.

“The reality is that there is no jurisdiction which has added this consideration without it leading to the very outcomes we are trying to eliminate — too many people in jail and racial disproportionalities,” said Nick Encalada-Malinowski, the civil rights campaign director at VOCAL-NY, an advocacy group for low-income New Yorkers.

Gianaris’ proposal doesn’t allow judges to consider dangerousness. Instead, defendants could only be held if charged with certain felonies or with intimidating a witness, or if they persistently and willfully failed to appear in court. The governor’s proposal allows judges to consider whether defendants are a high risk of flight or a “current threat to the physical safety of a reasonably identifiable person or persons.”

Whether or not to include the dangerousness standard is still subject to discussion, Gianaris said. Cuomo’s proposal allows judges to consider whether defendants are a high risk of flight or a “current threat to the physical safety of a reasonably identifiable person or persons.”

Assemblywoman Latrice Walker (D-Brooklyn) likens consideration of dangerousness to the science fiction movie “Minority Report,” in which police use psychics to arrest and convict individuals before they commit a crime.

“We want to make sure that if we’re reforming things we want to reform it for the better,” said Walker, who last year sponsored her own bail reform bill and is involved current negotiations. “We don’t want to take the law backwards.”

Paying for Programs

District attorneys say they are also concerned about the potential cost of eliminating bail – particularly the expense of expanding supervised release programs that provide case management to defendants.

Said Vance: “Without funding supervised release, without actually addressing that issue as a budget item, I think we are not being serious because supervised release is very expensive.”

In New Jersey, where the pretrial jail population dropped 20 percent following the elimination of cash bail in 2017, court officials warned in a report last year that the state’s pretrial services program is “simply not sustainable” since its funding relied on court fees rather than a dedicated funding stream.

In California, Gov. Gavin Newsom’s January budget proposal included $75 million to fund pilot programs related to pretrial decision-making in up to 10 courts.

Gianaris asserts his measure would result in “massive savings” from individuals no longer incarcerated.

“The savings from not housing thousands of individuals that we’re now paying for on a daily basis would vastly outweigh any additional costs of setting up a conditional release office,” he said.

A decline in detentions doesn’t guarantee cost savings. The New York City Department of Correction budget increased 7 percent, to $1.4 billion in fiscal year 2019, over a four-year period when average daily jail population declined 16 percent, to 8,175, according to the most recent preliminary Mayor’s Management Report.

The Cuomo administration’s proposal does not include additional funding for pretrial services or supervised release programs associated with bail reform. A spokesman for the Division of Budget projected “some efficiencies at the local level but the proposal is about civil liberties and overcoming the racial and economic inequities in how people are detained and adjudicated, not to realize operating efficiencies.”

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