Should “dangerousness" be a factor in granting bail?

Bail reform may be inevitable. But that doesn’t mean it’ll be easy to pass in Albany, thanks to an ongoing debate over how much discretion to grant prosecutors and judges.

State lawmakers already blew past their self-imposed February deadline for making changes to criminal justice laws amid disagreements over specific language. And now the Democratic legislative majorities in Albany are facing pushback on their plan from the very prosecutors and judges who would be putting the law into action.

There are three significant proposals for reforming New York’s bail system, which determines who will be held in jail after an arrest and the filing of charges, and who will be granted their freedom until facing a criminal trial.

One is the Bail Elimination Act, sponsored by state Sen. Michael Gianaris of Queens and Assemblyman Daniel O’Donnell of Manhattan. Despite the name, the bill wouldn’t fully eliminate bail and judges could still impose conditions to compel defendants to return to court. But the bill would end cash bail, a practice in which defendants are asked to pay a deposit, refundable if they attend all their court dates, in order to be released from jail.

A similarproposal to eliminate cash bail was included in Gov. Andrew Cuomo’s 2019 State of the State book, which would also encourage police officers to issue tickets requiring defendants to show up in court on a certain date, rather than making an arrest in many cases.

Lawmakers and the governor had already struggled to reach agreement on changes to the bail system whenthe New York State Justice Task Force, a group made up primarily of judges and prosecutors from across the state, complicated the negotiations by releasing its own bail reform recommendations in February. The task force called for most defendants to be released after arrest pending trial but to keep a cash bail system for those accused of committing serious offenses, such as assault and murder.

All three proposals would significantly shift the state’s bail system to favor defendants’ freedom over temporary incarceration. But the exact language is being hotly contested. And the late entry of the task force plan seems to have extended the debate.

“When we’re given discretion about who’s risky or who’s dangerous, a lot of these determinations end up being proxies for class and race.” - Rena Karefa-Johnson, criminal justice advocate

Gianaris is in the middle of these discussions as deputy majority leader and as the sponsor of the Senate’s bail reform bill. The governor and both houses of the state Legislature are in favor of eliminating cash bail, and don’t plan to back away from that, he told City & State this month, but he admitted that some legislators were moved by the counterproposal from the Justice Task Force.

“It’s a group that obviously has significant experience in the arena and expertise,” he said. “Many legislators find it persuasive.”

The District Attorneys Association of the State of New York, which has members on the Justice Task Force, has been urging caution in overhauling the laws. “We want to achieve the spirit of the legislative proposals, but we want to make sure it’s done responsibly, not at the expense of victims, and we want to make sure we do it in a way that will be long-lasting,” David Soares, the association’s president and Albany County district attorney, told Law.com.

The association’s position has drawn the scorn of criminal justice reform organizations, who want aggressive reforms implemented as soon as possible and are eager to capitalize on full Democratic control in Albany for the first time in a decade.

The Justice Task Force’s recommendation is similarly seen as too weak by activists like Rena Karefa-Johnson, state director of criminal justice reform for FWD.us, a bipartisan criminal justice reform organization that recently signed on to a letter critiquing the task force’s report along with like-minded organizations that included the New York Civil Liberties Union. “Prosecutors, as an institution, for a very long time have had an extraordinary amount of discretion,” Karefa-Johnson told City & State. “So there is a knee-jerk response to push back against anything that reduces their discretion.”

Plans from both the governor and lawmakers would limit the power of judges and prosecutors at arraignment, where they now have wide discretion to charge defendants and set bail. Supporters say reforms would help eliminate racial bias in the criminal justice system by leaving less room for individual discretion, while opponents fear changes could free dangerous criminals.

A major point of contention is the degree to whichjudges would beable to consider the “dangerousness” of a defendant in deciding whether or not to hold them in jail ahead of trial. Currently, judges are allowed to consider a variety of factors when setting bail, but not dangerousness directly. However, the Justice Task Force acknowledged in its report that even though judges are not allowed to consider dangerousness, it is widely accepted that they do in practice anyway.

“We’ve had situations where it’s quite clear that if the only question you can think about is flight risk, it leaves out a very, very crucial consideration,” - New York City Mayor Bill de Blasio 

The Legislature’s Bail Elimination Act would not grant judges that power. Instead, defendants could only be held if they were specifically charged with seriously injuring someone intentionally, or attempting to do so. The governor’s bill is more broad, letting judges consider whether defendants are currently a threat to the physical safety of a specific person or group. The Justice Task Force report cited its own “vigorous debate and discussion” over allowing judges to consider dangerousness, but ultimately decided against it, instead agreeing with the governor’s standard of a credible threat to the safety of a specific person or group.

Progressive activists like Karefa-Johnson say limiting judges’ discretion is essential to reducing bias in the criminal justice system.

“When we’re given discretion to make certain determinations about who’s risky or who’s dangerous, that is when we see an even more disparate impact,” she said. “A lot of these determinations end up being proxies for class and race.”

But not all liberals are on board. New York City Mayor Bill de Blasio, who controls the state’s largest police department in the NYPD, has repeatedly supported more judicial discretion. Judges should be able to consider dangerousness, de Blasio said at a Jan. 3 press conference with NYPD Commissioner James O’Neill. “We’ve had situations where it’s quite clear that if the only question you can think about is flight risk, it leaves out a very, very crucial consideration,” de Blasio said.

Discussions are continuing behind closed doors in Albany as advocates ramp up pressure, and Cuomo spokesman Rich Azzopardi said on March 5 that the governor isn’t agreeing to a budget without criminal justice reforms. But legislators are wary of setting any newdeadlines. Asked if criminal justice reform would be a part of the budget due April 1, Gianaris replied simply: “I have no prediction.”