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Kalief Browder’s Suicide Inspired a Push to End Cash Bail. Now It’s Stalled. Kalief Browder’s Suicide Inspired a Push to End Cash Bail. Now Lawmakers Have a Deal.
(about 11 hours later)
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For many in New York, the inequities in the cash bail system were crystallized when a Bronx teenager named Kalief Browder spent three years on Rikers Island because his family could not raise $3,000, only to have a robbery charge dropped for lack of evidence. He later took his own life.For many in New York, the inequities in the cash bail system were crystallized when a Bronx teenager named Kalief Browder spent three years on Rikers Island because his family could not raise $3,000, only to have a robbery charge dropped for lack of evidence. He later took his own life.
Since his death, the movement to abolish cash bail has grown stronger, especially among the state’s urban politicians who argue the current system discriminates against the poor, greatly diminishing their chances of acquittal. When Democrats seized control of the state Legislature in New York last fall, the party finally appeared poised to eliminate the use of cash deposits or bonds to ensure people return to court. Since his death, the movement to abolish cash bail has grown stronger, especially among the state’s urban politicians. On Friday, leaders in the state Legislature were poised to move forward with a plan to eliminate cash bail for most misdemeanors and nonviolent crimes while keeping monetary requirements or other conditions for violent felonies.
But the proposal has run into unexpected resistance from Long Island Democrats, who are dealing with a wave of MS-13 gang violence and have worries about appearing soft on crime, as well as from Democratic district attorneys, who want strong assurances that people who pose a danger to others will not be released. The tentative deal would draw New York a step closer to a eliminating cash bail altogether, as California did last year. New Jersey has also all but eliminated cash bail, while New Mexico has minimized its use.
At the same time, more liberal members of the Legislature are chafing at proposals that judges be given permission to hold defendants on the basis of subjective standards like “dangerousness” or “risk.” The split in the party has bogged down the proposal, leaving its fate in doubt. Details still were being negotiated as part of the state budget, which is due Monday, but legislative leaders seemed confident they would pass major changes to the bail law, as well as measures to ensure speedy trials for the state’s enormous incarcerated population and to improve the handing over of evidence to defendants.
As the year started, opponents of cash bail had the momentum: They scored a major victory last year when California became the first state to abolish cash bail, and states like New Jersey and New Mexico voted to minimize its use. Gov. Andrew M. Cuomo vowed last year to “end the cash bail system once and for all,” and the newly installed Democratic leaders of the State Assembly and Senate endorsed the idea. “Criminal justice reform is in an excellent place,” said Carl E. Heastie, the speaker of the Assembly, on Friday. He added that while the changes “didn’t go as far as we had liked, we will continue to work on that,” and estimated that about 85 percent of people arrested in the state would now be looking at a “cashless bail system.”
But disagreements have arisen over which crimes are serious enough to warrant letting a prosecutor request that a defendant be held in jail and whether judges can consider the threat some pose to the public in making bail decisions. Like the current law, most of the proposed bills only allow judges to weigh the risk of flight, not public safety. Senator Michael Gianaris, a Queens Democrat who sponsored one of the bail-reform proposals, said, “We are on the precipice of dramatic change that will bring justice to the vast majority of people incarcerated without a conviction.”
Supporters of changing the bail law point to a new report that shows judges in New York City have already cut the use of cash bail drastically over the last three decades without seeing a rise in the number of defendants who do not return to court. In a news conference late Friday, Gov. Andrew M. Cuomo — who had pledged last year to “end the cash bail system once and for all” — confirmed that there was a framework for a deal, but said details of how to treat people charged with violent felonies were being worked out. “That’s the point of contention,” he said.
City judges released about three-quarters of the defendants who appeared before them in 2017 without bail, and 86 percent of those people showed up for their court dates, the same percentage as three decades ago, when far more people were held on bail, and well above the national average, the report by the New York City Criminal Justice Agency showed. The move to sharply curtail the use of cash bail, in many ways, was the long-awaited response to the case of Mr. Browder, who was only 16 in 2010 when he was arrested on charges he stole a backpack in the Bronx. Unable to pay his bail, he spent three years in jail, two of them in solitary confinement, as his trial date was repeatedly postponed.
Mr. Cuomo said in an email to supporters this week that he would not agree to a state budget unless it contained language ending cash bail, along with other sweeping changes to criminal procedures. “And we know that the overwhelming number of people who can’t afford bail are black and Latino, making this an issue of racial justice,” the email stated. The charges were finally dropped in 2013, after prosecutors could not find the person who claimed to have been robbed. Mr. Browder had trouble adjusting to freedom and hanged himself in 2015.
As negotiations pushed toward the April 1 budget deadline, the Senate majority leader, Andrea Stewart-Cousins, a Westchester County Democrat, reiterated that she and fellow Democrats in her chamber wanted to “make sure that we’re not criminalizing poverty, and that there would never, ever, ever be another instance of a Kalief Browder.” For many left-leaning politicians, he is a symbol of the problems inherent in the bail system, which they argue discriminates against the poor.
Cash bail has roots going back to Anglo-Saxon law, and has evolved to mean the set of conditions that judges impose on people who have been arrested to make sure they return to court until their cases are resolved. In New York, judges routinely give defendants just two options: cash and insurance bonds, and this, critics say, has created a two-tiered system of justice. When Democrats seized control of the state Legislature last fall, the party finally appeared poised to stop the use of cash deposits or bonds to ensure people return to court.
But the proposal ran into unexpected resistance from Long Island Democrats, who are dealing with a wave of MS-13 gang violence, as well as from Democratic district attorneys, who wanted strong assurances that people who pose a danger to others would not be released.
At the same time, more liberal members of the Legislature chafed at proposals that judges be given permission to hold defendants on the basis of subjective standards like “dangerousness” or “risk.” Neither of those factors were a part of the framework worked out on Friday, according to two people close to the negotiations who requested anonymity because the deal had not been finalized.
Assemblywoman Latrice Walker, a Brooklyn Democrat who has sponsored a bill to reform bail, said the proposed legislation would also encourage judges to “use the least-restrictive measure possible in order to ensure a person returns to court.”
“While I know that we have not gone as far as many folks may have liked us to go, it’s groundbreaking,” she added.
The deal would eliminate bail for all misdemeanors, except those involving sexual misbehavior, and for nonviolent felonies, second-degree robbery and second-degree burglary, Ms. Walker said. Many low-level offenses also would be downgraded to desk-appearance tickets, meaning defendants would not be arrested before they appeared before a judge, she said.
Democratic gains in elections last fall swept away a Republican majority in the Senate that for decades had bottled up efforts to alter the bail law. This year, supporters of abolishing cash bail expected swift passage of a bill, particularly considering Mr. Cuomo and the legislative leaders’ support.
But New York politics are never easy; the interests of New York City lawmakers often conflict with suburban and upstate priorities, even within the same party. And moderate members of the new Democratic majority in the Senate had been urging caution on eliminating cash bail without safeguards to keep dangerous criminals in jail.
That reticence was particularly acute in suburban Long Island, where the atrocities committed by the Salvadoran group MS-13 was a Republican talking point last fall.
Many of the “Long Island Six” — as the six Democrat senators in Nassau and Suffolk Counties are known — are also anticipating spirited re-election campaigns next year, having narrowly won their races in 2018. They are already facing headwinds because of the flurry of victories for liberal Democrats — including codifying abortion rights and a recent agreement on congestion pricing — that threaten to alienate some conservative and suburban voters.
The tentative deal closely tracks the position of the state District Attorneys Association, which had endorsed ending bail for most misdemeanors and some nonviolent felonies.
Six Democratic prosecutors from the city and its suburbs — including liberals like Cyrus R. Vance Jr. in Manhattan, Eric Gonzalez in Brooklyn and Darcel D. Clark in the Bronx — wrote an opinion piece in The Daily News this week in support of ending cash bail, but only if the law was changed so that judges could order people detained “who pose a physical safety threat to others.”
During negotiations, disagreements arose over which crimes were serious enough to warrant letting a prosecutor request that a defendant be held in jail and whether judges could consider the threat some pose to the public in making bail decisions. Liberal members of the legislature seemed intent on making the risk of flight the only consideration for bail, a goal they seemingly fell short of.
Cash bail has roots in Anglo-Saxon law and has evolved to mean the set of conditions that judges impose on people who have been arrested to make sure they return to court until their cases are resolved. In New York, judges routinely give defendants just two options: cash and insurance bonds, and this, critics say, has created a two-tiered system of justice.
Because people free on bail are more likely to prevail at trial, the system gives wealthier defendants an enormous advantage over those who are poor, and disproportionately affects black and Latino people. Public defenders say impoverished defendants often plead guilty to reduced charges simply to end incarceration, even as they maintain their innocence.Because people free on bail are more likely to prevail at trial, the system gives wealthier defendants an enormous advantage over those who are poor, and disproportionately affects black and Latino people. Public defenders say impoverished defendants often plead guilty to reduced charges simply to end incarceration, even as they maintain their innocence.
Mr. Browder was only 16 in May 2010 when he was arrested on charges he stole a backpack in the Bronx. Unable to pay his bail, he spent three years in jail, two of them in solitary confinement, as his trial date was repeatedly postponed. Supporters of ending cash bail had recent data on their side, including a new report that showed judges in New York City have already cut the use of cash bail drastically over the last three decades without seeing a rise in the number of defendants who do not return to court.
The charges were finally dropped in 2013 after the prosecutors could not locate the person who claimed to have been robbed. Mr. Browder was released but had trouble adjusting to freedom and hanged himself in 2015. His case became a rallying point for left-leaning politicians, among them Mayor Bill de Blasio, who have sought not only to abolish cash bail, but to overhaul the state’s speedy trial rules and to end the practice of jailing teenagers with adults. City judges released about three-quarters of the defendants who appeared before them in 2017 without bail, and 86 percent of those people showed up for their court dates, the same percentage as three decades ago, when far more people were held on bail, and well above the national average, a report by the New York City Criminal Justice Agency showed.
In Albany, Democratic gains in elections last fall swept away a Republican majority in the Senate that for decades had bottled up efforts to alter the bail law, and supporters of eliminating cash bail expected swift passage of a bill. Mr. Cuomo has repeatedly said he would not sign a budget without changes to the criminal justice system, and as negotiations pushed toward Monday’s budget deadline, the Senate majority leader, Andrea Stewart-Cousins, a Westchester County Democrat, reiterated that she and fellow Democrats in her chamber wanted to “make sure that we’re not criminalizing poverty, and that there would never, ever, ever be another instance of a Kalief Browder.”
But New York politics are never easy; the interests of New York City lawmakers often conflict with suburban and upstate priorities, even within the same party.
Nowhere is that dissonance more pronounced than in suburban communities of Long Island, where the atrocities committed by the Salvadoran group MS-13 was a Republican talking point last fall.
Moderate members of the new Democratic majority in the Senate from Long Island and other suburban enclaves have been pumping the brakes on eliminating cash bail without safeguards to keep dangerous criminals in jail.
A collection of Senate Republicans, judges and law enforcement officials have been lobbying against the proposed changes.
“The Long Island districts are the ones truly under the most pressure, the most heat,” said Khalil A. Cumberbatch, a former inmate who works as the chief strategist for New Yorkers United for Justice, a coalition lobbying for an end to cash bail.
Many of the “Long Island Six” — as the Nassau and Suffolk County’s six Democrat senators are known — are also anticipating spirited re-election campaigns next year, having narrowly won their races in 2018. They are already facing headwinds because of the flurry of victories for liberal Democrats — including codifying abortion rights and a recent agreement on congestion pricing — that threaten to alienate some conservative and suburban voters.
One of the six is Senator James Gaughran, a Suffolk County Democrat. He said that after speaking with Long Island district attorneys, who are concerned about MS-13 members being released back on the streets, he would support a “bail reform bill, as opposed to a no-bail bill.”
The state District Attorneys Association has endorsed the end to bail for most misdemeanors and some nonviolent felonies, but has warned lawmakers to carefully consider the implications of making broader changes. They note that the Legislature has held no hearings on the issue.
“We’re not in opposition to reform, but what we are opposing are unrealistic, impractical proposals that break the system,” said P. David Soares, a Democrat who is the Albany County district attorney and the association’s president.
Six Democratic prosecutors from the city and its suburbs — including liberals like Cyrus R. Vance Jr. in Manhattan, Eric Gonzalez in Brooklyn and Darcel Clark in the Bronx — wrote an opinion piece in The Daily News this week in support of ending cash bail, but only if the law is also changed so that judges can order people detained “who pose a physical safety threat to others.”
Still, supporters of eliminating cash bail are confident they will negotiate a deal on cash bail before the session ends.
“It’s not like we’re looking at apples and oranges,” said Assemblywoman Latrice M. Walker, who sponsored a bail reform measure that passed last year. “It’s more like oranges and grapefruits.”
There is general agreement, for instance, that the only factor a judge should consider for most misdemeanor and nonviolent felony charges is whether a defendant is likely to return to face trial, lawmakers said.
The main disagreement in Albany seems to be over precisely which offenses prosecutors would be allowed to request that a person be held in jail, and which would be eligible for stricter release conditions. Also being debated is how judges would define abstract concepts like “dangerousness” and “risk.”
Some liberal lawmakers say provisions allowing judges to determine how dangerous the accused person is would give judges too much leeway, inviting the potential for racial or personal bias to influence the decision.
A bill put forward by Senator Michael Gianaris, a Queens Democrat, and Assemblyman Daniel J. O’Donnell, a Manhattan Democrat, ends cash bail but does not allow judges to make decisions based on security concerns.
“There’s a consensus about doing something,” said Assemblyman Joseph R. Lentol, a Brooklyn Democrat who is chairman of the Codes Committee. “We just haven’t figured out the details.”