The backlash to the cash bail backlash

In the early weeks of 2020, critics of the recently-implemented criminal justice reforms drove public debate, sometimes by spreading inaccurate information. But the coronavirus outbreak has shifted attention from efforts to change the new bail and discovery laws – including a February compromise proposal floated by Democratic state senators – and liberal lawmakers and leftwing activists are looking to make up for lost time this week. This includes a midday rally on the regular Tuesday Lobby Day outside the Capitol office of Gov. Andrew Cuomo, who supports amending the reforms in the state budget due April 1. 

One argument activists are making is about dollars and cents. Counties outside New York City could save tens of thousands of dollars per prisoner each year by moving resources away from jails to funding health care, mental health and housing services, according to a report released this week. Another argument is more confrontational: White people who support changing the new laws are either motivated by racism or do not grasp the benefits the reforms bring to people of color. The reaction to the state Senate proposal from Assembly Democrats and activists last month highlights how the issue divides Democratic lawmakers in both the Assembly and the state Senate.

Legislative decisions, especially those during budget season, are ultimately determined by negotiations among the governor, state Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie. Heastie has continued to oppose efforts by the other two to make changes. Now, activists are looking to put more pressure on Cuomo, even as coronavirus has sucked up most of his legislative attention.

There are some differences in the details between the positions of the state Senate and Cuomo, but they are both looking to address criticism of new limits on cash bail by allowing judges to decide whether criminal defendants should be jailed pretrial while also completely eliminating cash bail itself. Cuomo has presented these similarities as vindicating his 2019 proposal. His original plan would have completely eliminated cash bail while allowing judges to consider the so-called dangerousness of a criminal defendant when deciding whether to release them pretrial.

“I like the proposal I had last year,” Cuomo said during a Tuesday appearance on WAMC (to be posted here). “That’s what I want to talk to the leaders about.” Activists say his proposal would allow racial bias to affect judicial decision-making, and Heastie has backed them up thus far. But pressure from the governor and Stewart-Cousins could change that in the coming weeks. “We’ll see,” Cuomo said. “We have to have the conversations.”