On April 1, CDANY joined with NYSACDL & NYSDA to issue the following statement regarding the last-minute Bail Proposal for the New York State Budget:

NYS DEFENDER ORGANIZATIONS OPPOSE UNCONSTITUTIONAL & DEEPLY FLAWED BAIL PROPOSAL WITH PRE-EMPTIVE JAILING BASED ON PREDICTIONS OF “DANGEROUSNESS” PROPOSAL

(Albany, NY) -- Today,  the three statewide defender organizations, the Chief Defenders Association of New York (CDANY), the New York State Association of Criminal Defense Attorneys (NYSACDL), and the New York State Defenders Association (NYSDA), released the following statement in response to revelations of a bail bill proposed by Governor Andrew Cuomo and the New York State Senate:

“The governor’s proposal represents a radical departure from constitutional principles, sound public policy, and common sense. This bill would authorize a judge to jail a person on unproven charges based solely on speculation that person may be arrested in the future. The bill would dramatically increase the numbers of people held in jail prior to the adjudication of charges. 

The bill is not merely a repeal of the bail reform laws the legislature approved in 2019, which have already significantly reduced the pre-trial jail population for low-level offenses. The governor’s proposal would reverse course and, instead, increase pre-trial incarceration rates and exacerbate the racial disparities that existed prior to the reforms. 

The governor’s proposal will expand the number of people held in jails and prisons even as the coronavirus pandemic places those individuals at heightened risk of illness and death.  To introduce this measure during a public health crisis is unconscionable.  We are counting on members of the legislature who believe in justice and fairness to stop this bill from becoming law.”

 

BACKGROUND:

The Governor and Senate’s proposal would:

Replace cash bail with indefinite preventative detention (remand) with no possibility of release for most people, including people charged with misdemeanors, based on flight risk or a so-called “dangerousness” assessment

• The bill repeals cash bail but greatly increases detention.  Individuals who are remanded have no avenue for release as the due process provisions are eviscerated.

Creates new standard for pretrial detention based on a so-called “dangerousness” assessment

• The bill broadens the standard for detention: “the least restrictive conditions that will reasonably assure the principal’s return to court or prevent the principal from committing a crime involving serious physical injury to another person based on the facts of the instant case.”
• This language authorized judges to predict the future which inevitably invites implicit bias into our pretrial system: It allows judges to guess future “dangerousness.”  This will undoubtedly lead to more racial disparities in our system.
• This bill would eviscerate the presumption of innocence and will greatly increase the number of presumptively innocent people who are subject to pretrial detention.

 

Dramatically expands pretrial detention eligibility

• This bill greatly expands the eligibility for indefinite preventative detention to include many more charges that are currently not bail eligible.  This will increase pretrial detention rates across the State.

Allows remand in misdemeanor cases for the first time in New York’s history

• The bill appears to create a new detention eligibility category for an undefined group of so-called “persistent offenders.”  A person can become eligible for remand whenever they are released pre-trial  on a class A misdemeanor involving alleged “harm to an identifiable person or property” and are arrested for a new alleged class A misdemeanor involving “harm to an identifiable person or property”.  This provision is particularly problematic as it is subject to broad and unfettered interpretation.  As we have seen in our state and in other states, this kind of authority results in indefinite pre-trial jailing for a broad category of people, especially those who suffer from mental illness, as well as others  who are targeted by law enforcement.  Again, this will result in mass incarceration of people of color.
• Such a provision is even more regressive than our past bail laws; it would make huge numbers of people charged with misdemeanors subject to remand for the first time ever.

 

Violates due process for people facing remand

• Prosecutors can move to detain people at arraignment pending a detention hearing without even a probable cause finding.
• Judges can pre-determine guilt by evaluating the “weight of the evidence”.  This provision flouts the presumption of innocence.
• The defense is entitled to one subsequent hearing requesting release.  After that, there must be a “substantial change in circumstances.”  This provision, again, is regressive and curtails opportunities for review of arbitrary detention decisions.