Gov. Cuomo delivers his State of the State
In his recently-released policy agenda for 2016, Gov. Andrew Cuomo included a plan to reform the state's bail system. While it has not been fully fleshed out yet, Cuomo's proposal dictates that judges would use a scientific assessment tool to determine an individual's "risk to public safety" while setting bail, a proposal similar to one Mayor Bill de Blasio recently made, with both coming under fire from criminal justice reformers.
De Blasio made his call on the state to reform bail laws in the wake of the shooting of NYPD Officer Randolph Holder by an alleged assailant with a long rap sheet of drug-related arrests. The mayor and others attacked the judge who put the alleged shooter into a diversion program instead of setting a high bail and effectively holding him in jail.
The plan was criticized by public defenders and criminal justice reform groups as a step in the wrong direction. Groups like Legal Aid Society are concerned adding 'dangerousness' to a judge's evaluation of an individual could lead to preemptive detention and institutionalized racism, see people charged with nonviolent crimes hit with disproportionate bail because they are deemed to be a threat, and lead to even more jail overcrowding as judges feel the need to remand an increasing number of defendants out of the fear of political blow back.
The same groups are now surprised and concerned to see Cuomo is running with the idea.
"I think this could make things terribly worse," said Jonathan Gradess, executive director of the New York State Defenders Association. "I think the mayor made a mistake when he called for this. I understand it was after a shooting of a police officer but it's wrongheaded and the governor is wrongheaded in now proposing the same thing the mayor did. We'd be giving a legal protection to the racism that already exists in the system."
Advocates for criminal justice reform and a number of Democratic legislators were surprised when presented with Cuomo's bail reform plan given that most of the criminal justice priorities contained in his address and other recent action lined up with major progressive reform agenda items. These include Cuomo's push to raise the age of adult criminal responsibility from 16 to 18 and to expand alternatives to incarceration programs.
Cuomo's budget book lists the bail plan under the "Fairness For All" section, along with increasing "opportunities for families to stay close during incarceration" and "reward[ing] success after release," among other planks.
The governor appears to be making the same argument that de Blasio made, which is that there needs to be more leniency for non-violent offenders, but harsher discipline for those who commit the gravest crimes - or who may commit them.
The Cuomo administration intends to utilize a risk-assessment program like the one developed by the Laura and John Arnold Foundation, an organization that looks to use a fact-based approach to combating societal problems. The program aims to gauge an individual's risk of reoffense by evaluating factors including age, criminal record, and previous failures to appear in court. The foundation has touted the predictive tool as a way to remove biases from the process of setting bail. Criminal justice reformers and public defenders worry it will have the opposite impact.
Members of the Cuomo administration stressed that they have yet to settle on a plan, or develop a program bill with the parameters for the program and that any judgement by outside groups is simply uninformed.
"Bail reform, when combined with an assessment tool, has the opposite effect of what they are suggesting," Alphonso David, counsel to Governor Cuomo told Gotham Gazette of critics. "What we've seen when it has been implemented in areas of Kentucky and in the city of Chicago is a decrease in crime, a decrease in reoffending, and a decrease in jail population."
Nevertheless, advocates are concerned that an impersonal evaluation tool will make it easier for judges to rationalize denying bail.
"Over the last couple of years we've been heartened to see an incredible amount of attention paid to the problems with our bail system -- people languishing in jail for years who have not been convicted of anything, who simply can't pay the price for their freedom and how our bail system disproportionately impacts people of color," said Justine Olderman of The Bronx Defenders.
"Policy makers have vowed to fix these problems," Olderman said. "Yet at the same time, they call for including dangerousness in the bail statute which will expand the reasons that a person who is presumed innocent can be held in jail. They seem to do so without any recognition that including dangerousness will undermine their bail reform efforts and will only exacerbate our current bail crisis."
Lately, the conversation about bail has focused on preventing the poor from disproportionately having to serve jail time when they can't afford to pay even small amounts of bail for minor crimes. City Council Speaker Melissa Mark-Viverito first announced plans to back a bail fund, then de Blasio followed suit with a public bail fund, followed by Democratic state Senator Michael Gianaris introducing legislation that would eliminate cash bail for certain individuals.
Gianaris said that he hopes there will be room for discussion of his plan given that the governor put the concept of bail reform in his 2016 agenda. "The debate is long overdue," said Gianaris. "The bail system has no rational basis. It just imprisons poor people who have not been convicted, the rich simply pay bail."
Gianaris acknowledged that the concept of basing bail on dangerousness has split progressives in the past. "This has been an ongoing debate with progressives falling on different sides of it. My bill doesn't change what a judge considers. It just does away with the financial component of bail."
Advocates say Cuomo's proposal simply doesn't jive with the rest of his progressive criminal justice agenda.
"I was surprised to see this in the same agenda with 'raise the age' and other criminal justice reforms," said Justine Luongo, who is the attorney in charge of Legal Aid Society's legal practice. "I understand why you would go this route: you want to prevent terrible tragedies, but this leads us down the wrong path."
Cuomo's 2016 policy book states that New York is one of four states that do not require judges to consider public safety when setting bail and that the current "approach means that people in New York who do not present a risk to public safety are detained while people who may present a risk to public safety are able to post bail and gain release."
The policy book goes on to say: "Governor Cuomo will introduce legislation to require judges to consider public safety when making release and bail decisions. The legislation will also permit judges to use research-based, accepted risk assessments when considering a defendant's threat to public safety. Other states and cities are using these risk assessments with good results: more people are released from jail before trial, without any attendant rise in crime."
The New York Times reported in June that a North Carolina precinct that has implemented the Arnold Foundation's assessment tool has seen its jail population drop by 20 percent.
State Senator Gustavo Rivera, who said he was very pleased by the majority of Cuomo's criminal justice agenda, was taken aback by the bail proposal. "As far as the bail proposal and my current understanding of it, I am deeply concerned that it might be going toward preventive detention," Rivera, who has backed a bail fund in the Bronx, told Gotham Gazette. "The state moved away from that, it rejected that in the past."
The state legislature has periodically debated having judges consider dangerousness since the 1970s, but in the end has decided against it.
"I think conceptually most people support judges being able to consider public safety when setting bail," said David, Cuomo's counsel.
Manhattan District Attorney Cyrus Vance has advocated for this particular change to the state's criminal justice law. "My Office has long supported a change to the state's antiquated law that only permits us to take an individual's risk of flight into account when setting bail," Vance said in a statement in July that was issued as part of an announcement touting a $17.8 million commitment from de Blasio to supervise 3,000 defendants as part of a community release program designed to avoid bail or jail time before trial.
"Today, I'm calling on Albany to amend that law to enable prosecutors, judges, and defense attorneys to also evaluate dangerousness and risk of re-offending when making bail determinations, as is the practice in nearly every other state in this country," Vance's July statement continued. "The use of an updated science-driven risk assessment tool will help actors in the criminal justice system better understand who can safely be released and supervised in the community while awaiting their day in court."
Reform advocates and a number of public defenders said they've seen no proof that states that consider dangerousness are actually preventing crime. They insist that only a small portion of those released on bail actually go on to be rearrested while awaiting trial.
"I have not come across any empirical data that New York has greater rearrest rates than any community with a dangerous statute," said Olderman.
Advocates fear the assessment tool will be used to jail a larger swath of people who haven't been found guilty of any crime, that judges will tend toward remanding defendants rather than posting bail for fear that there could be political backlash should someone out on bail is accused of another crime.
"We are very concerned there will be findings of dangerousness by this assessment tool in cases where there is no nexus with violence," said Luongo. She said that a youth with a history of non-violent misdemeanors could be deemed dangerous because of assessment criteria.
"In the current system a number of factors are already taken into account when setting bail, in domestic violence cases for example. We have registries for gun offenders and domestic violence, a judge can already take dangerousness into account," said Luongo. "Our concern is here that we are talking about predictive, preventative detention. It is troubling that the governor is not talking about striking a balance, doing away with bail in misdemeanor cases as former Chief Judge Lippman has suggested."
Jonathan Lippman, who was forced into retirement recently due to age restrictions on his position, has long pushed the legislature to overhaul the state's bail system as he has argued it disproportionately impacts the poor, forcing those unable to pay even the smallest bail to serve long jail terms before trial and thereby destroying any chance they have at a normal life. However, Lippman has advocated the state to move on the bail reform de Blasio and Cuomo are pushing for. In August, Lippman defended de Blasio's stance in an interview with Politico New York in October.
"I think they're fearful of this idea of preventive detention, but at some point you have to have confidence in judges and their judgement — that's what judges are there for — and you have to have a balanced bail statute that makes some sense and keeps violent people in, and there's a presumption that people who are not violent, and won't hurt anybody, are at their job and with their families and out on the street," Lippman said of Legal Aid Society criticism, according to Politico New York.
Legal Aid Society is also concerned that once a judge labels someone "dangerous" it could become very difficult to lose the label even in the face of facts. Luongo said that facts in cases can quickly change as seen in the recent highly-publicized Brownsville group rape case. "If one judge finds a defendant "dangerous," who is going to be willing to reverse that? Are judges going to be willing to step on another judge's toes?"
Robyn Pangi of The District Attorneys Association of New York told Gotham Gazette that her organization had not yet seen any specifics of Cuomo's plan. "District Attorneys would like to be involved in conversations regarding changes to the current bail system, particularly a proposal that takes into account the dangerousness of a defendant when setting bail," Pangi said in a statement. "DAs are interested in different mechanisms of pretrial detention, but stress that any sound proposal must take into account public safety and allow for prosecutorial appeal of the judge's decision in cases where the DA feels that public safety has not been given sufficient consideration."
There may not be much room for debate on the proposal this year as many important Democratic legislators are opposed to the idea from the get-go.
"I think this is a non-starter," said Gradess, of New York State Defenders Association.
Albany can be a place of trade-offs, though, and Cuomo could work to convince initial opponents to agree to a full package of bail reforms that also satisfy what they would see as progress.
Cuomo's counsel, Alphonso David, told Gotham Gazette that he would be surprised to see opposition to the plan once the administration releases its full bill. "We can't be driven by fears, we have to be driven by data," said David. "We don't legislate based on fear, we legislate based on data."
by David King, Albany editor, Gotham Gazette