Cuomo, in Bid to Help Poor, Proposes Ending Cash Bail for Minor Crimes
Posted January 2, 2018 11:03 p.m. EST
Gov. Andrew M. Cuomo plans to ask the New York Legislature to eliminate cash bail for many crimes and to speed up the disclosure of evidence in trials as part of a package of proposals intended make the criminal justice system fairer for indigent defendants, his aides said.
The governor plans to outline the proposals Wednesday in his State of the State address, as lawmakers convene in Albany and prepare to take up a legislative agenda that is expected to focus not only on criminal justice but also on the environment and education.
In addition to revamping the bail and evidence laws, the package of criminal justice bills would aim to reduce delays during trials, ban asset seizures in cases where there has been no conviction and make it easier for former convicts to get a job after leaving prison.
Cuomo, a Democrat with presidential aspirations, is promoting the bills as “the most progressive set of reforms in the nation,” his aides said. “For far too long, our antiquated criminal justice system has created a two-tier system where outcomes depend purely on economic status — undermining the bedrock principle that one is innocent until proven guilty,” Cuomo said in a statement outlining the proposals.
Political momentum to abolish or limit the use of monetary bail has been building across the country in recent years, as critics have pointed out it discriminates against people who cannot pay. In New Jersey, a law went into effect last year that has nearly eliminated cash bail by mandating that state judges release most defendants unless they are a proven flight risk or threat to public safety.
The governor’s proposals are likely to meet opposition from police unions, the bail bond industry, district attorneys and Republican lawmakers who control the Senate. The fate of the bills is far from clear in the legislative session and may depend on what incentives Cuomo can offer to the Republican opponents.
Taken together, the proposed bills address several aspects of the criminal justice system critics have long decried as unfair to the poor, chief among them the state’s cash bail system and its restrictive discovery law, which allows prosecutors to withhold important evidence against a defendant until the eve of trial.
These laws give a tremendous advantage to the police and prosecutors and, in effect, discriminate against defendants with few resources, who disproportionately are black or Hispanic, defense lawyers say. Impoverished people are often unable to pay the bail set by judges in their cases and spend months or years in jail, unable to help with their defenses, and without knowing the strength of the case against them, defense lawyers say. Many accept plea bargains just to end the ordeal.
The measure Cuomo is proposing would eliminate cash bail for people facing misdemeanor and nonviolent felonies. Instead defendants would be released, either on their own promise to return to court, or with some other conditions imposed by the judge.
Judges could still impose bail for serious violent crimes, like felony assault or rape, but only after reviewing a defendant’s finances.
At the same time, a second bill would loosen the state’s restrictive laws regarding when and how prosecutors must turn over their evidence to the defense, known as “discovery.”
Currently prosecutors can withhold some key evidence until the eve of trial, including the criminal histories of the state’s witnesses and the statements they have made to the grand jury and to law enforcement. The defense also must disclose the evidence it plans to present before trial, though in most criminal trials, most of the evidence is presented by the prosecution.
The governor’s proposal would compel the prosecution and the defense to share information earlier in the process, including the identity and background of witnesses. It would set deadlines for the state to turn over police reports and other evidence, in stages, within three months of the day a person is arraigned on charges, Cuomo’s aides said.
This provision will most likely face resistance from prosecutors, who have long argued witnesses to violent crimes are put in danger if their identities are turned over too quickly to the defense.
Cuomo also plans to introduce a bill aimed at another stubborn problem in the justice system: constant delays in bringing a person to trial that often make a mockery of the speedy trial provisions in state law and the U.S. Constitution.
Those delays often happen when prosecutors and defense lawyers fail to get ready for trial on time and agree to postpone the case and suspend speedy trial requirements.
That problem was brought into sharp focus by the case of Kalief Browder, a teenager who spent three years jailed on Rikers Island awaiting trial on a robbery charge. His case was delayed repeatedly, until the charges were finally dropped after prosecutors could not locate the accuser. Browder committed suicide after his release.
A similar effort to overhaul the bail law died in the Legislature in 2013, despite the support of the state’s chief judge, Jonathan Lippman. That bill would have let judges consider public safety when making decisions about bail. It drew criticism not only from Senate Republicans, who worried about appearing soft on crime, but also from Democrats who thought it would give judges too much leeway to jail people on the subjective ground that they were “dangerous.”
Still, Cuomo’s aides think public opinion has shifted in the last five years, as federal courts have begun to question whether cash bail is constitutional and numerous studies have cast doubt on whether bail is the best way to ensure people show up to court.