Last week, as law enforcement officials around the country were cutting jail populations to blunt the spread of the coronavirus, New York lawmakers did something that could lead to more people getting locked up.
The state Legislature changed course on a 2019 law that restricted the use of cash bail, tucking new caveats into a last-minute budget bill signed Friday by Gov. Andrew Cuomo.
The original law was seen as a milestone in a nationwide movement to reduce America’s reliance on incarceration by eliminating bail for people accused of low-level crimes, allowing them to remain free while awaiting trial. Researchers say cash bail has a disproportionate impact on the poor and on black and Latino communities, making them more likely to get stuck in jail, get fired from jobs, lose custody of their children, plead guilty to something they didn’t do and suffer the lifelong consequences of a criminal record.
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The revisions are a reminder that those efforts remain works in progress, and still face resistance — even during a global health crisis that has drawn public attention to the conditions behind bars in the nation.
Authorities in other states, including California and Alaska, have loosened bail rules in response to the coronavirus outbreak, allowing more people charged with low-level crimes to avoid jail. Attorney General William Barr, an opponent of many criminal justice reforms, has told his prosecutors to consider the effect of the virus’ spread when weighing whether to ask a judge to detain someone. Authorities in cities around the country have sought ways to keep people accused of nonviolent crimes out of lockups.
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In New York, authorities have moved on several fronts to lower the number of people in jails, releasing people nearing the end of sentences for nonviolent offenses and people facing minor parole violations.
To some, those moves seem at odds with New York’s alterations to the bail law.
Those changes, added to the spending bill without public debate, passed three months after the state eliminated pretrial detention and cash bail for most people charged with misdemeanors and nonviolent felonies. During that time, the population of county jails decreased by about 6.5 percent. Reform advocates say the impact has been much more dramatic: Since many counties began adopting new rules months earlier, they say jail populations have been cut by nearly a third.
But opponents — including many law enforcement officials and Democratic and Republican lawmakers — claimed the new law was endangering the public, citing stories of people who committed new crimes after being freed.
The changes enacted Friday — and due to go into effect after 90 days — add new categories of offenses in which judges could order people held on bail before trial. The expanded list includes vehicular manslaughter, criminally negligent homicide, sex trafficking, assault and grand larceny. It also includes offenses “involving harm to an identifiable person or property” allegedly committed while the suspect was on bail for a different charge.
That last category, defense attorneys and reform advocates say, is too vague and could be used to hold tens of thousands of people on bail who wouldn’t have faced pretrial detention under the original version of the law. They cite studies showing that people who are jailed before trial on low-level charges are more likely to plead guilty and more likely to commit future crimes.
Insha Rahman, director of strategy and new initiatives at the Vera Institute of Justice, a nonprofit that advocates for alternatives to incarceration, said she worried that the revised bail guidelines will target the poor at a time when unemployment is soaring and the economy appears headed into a recession.
“Ninety days from now, the jail numbers will go up,” she said.
Reform advocates are also troubled by the timing of the changes, adopted during a pandemic that had spread to several local jails. The outbreaks in lockups have forced authorities to find ways to reduce jail populations; Cuomo, a Democrat, has promised to approve the release of 1,100 inmates held on technical parole violations.
The bail rollbacks “are totally contradictory” to efforts to stem the coronavirus’ spread, said Scott Levy, chief policy counsel for The Bronx Defenders, which represents people who can’t afford private lawyers. “There is no way to square them,” he said.
State Sen. Monica Martinez, a Long Island Democrat who pushed for the law to be changed, said the revisions were written to go into effect in 90 days “to avoid the apex of the virus.”
Maryanne Kaishian, a senior staff attorney at Brooklyn Defender Services, said she did not find that reassuring.
“We can’t say that 90 days from now things will be better, and things definitely are not at their peak at Rikers Island,” she said, referring to the main jail complex in New York City, where more than 200 inmates and more than 400 workers have tested positive for COVID-19, the disease caused by the coronavirus. “So it’s likely that when they go into effect in 90 days, more people will be sent into deadly conditions of a pandemic.”
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Cuomo’s office released a statement saying his bail changes, even with revisions, complemented the state’s coronavirus response.
“We passed one of the most sweeping bail reform bills in the history of the State of New York so we're incarcerating fewer people than ever before and taking special measures for this virus situation,” Cuomo’s statement read. “For example, we're releasing people who are in jails because they violated parole for non-serious reasons. And wherever we can get people out of jails, out of prisons, now we are.”
Orange County District Attorney David Hoovler, president of the District Attorneys Association of New York, called it a coincidence that the revisions passed during the coronavirus pandemic. While it makes sense to let some people out of jail during the outbreak, it’s also important to keep the public safe, he said.
He added that he’d like to see more changes to the law, including funding for counties to expand home monitoring programs and other alternatives to pretrial detention.
“This is a good first start,” Hoovler said. “Somewhere down the road, we may have to tweak them again.”