Gotham Gazette: ‘Dangerousness’ Aspect of Cuomo’s Bail Plan Troubles Reformers
In his recently-released policy agenda for 2016, Gov. Andrew Cuomo included a plan to reform the state’s bail system. While it has not been fully fleshed out yet, Cuomo’s proposal dictates that judges would use a scientific assessment tool to determine an individual’s “risk to public safety” while setting bail, a proposal similar to one Mayor Bill de Blasio recently made, with both coming under fire from criminal justice reformers.
De Blasio made his call on the state to reform bail laws in the wake of the shooting of NYPD Officer Randolph Holder by an alleged assailant with a long rap sheet of drug-related arrests. The mayor and others attacked the judge who put the alleged shooter into a diversion program instead of setting a high bail and effectively holding him in jail.
The plan was criticized by public defenders and criminal justice reform groups as a step in the wrong direction. Groups like Legal Aid Society are concerned adding ‘dangerousness’ to a judge’s evaluation of an individual could lead to preemptive detention and institutionalized racism, see people charged with nonviolent crimes hit with disproportionate bail because they are deemed to be a threat, and lead to even more jail overcrowding as judges feel the need to remand an increasing number of defendants out of the fear of political blow back.
The same groups are now surprised and concerned to see Cuomo is running with the idea.
“I think this could make things terribly worse,” said Jonathan Gradess, executive director of the New York State Defenders Association. “I think the mayor made a mistake when he called for this. I understand it was after a shooting of a police officer but it’s wrongheaded and the governor is wrongheaded in now proposing the same thing the mayor did. We’d be giving a legal protection to the racism that already exists in the system.”
Advocates for criminal justice reform and a number of Democratic legislators were surprised when presented with Cuomo’s bail reform plan given that most of the criminal justice priorities contained in his address and other recent action lined up with major progressive reform agenda items. These include Cuomo’s push to raise the age of adult criminal responsibility from 16 to 18 and to expand alternatives to incarceration programs.
Cuomo’s budget book lists the bail plan under the “Fairness For All” section, along with increasing “opportunities for families to stay close during incarceration” and “reward[ing] success after release,” among other planks.
The governor appears to be making the same argument that de Blasio made, which is that there needs to be more leniency for non-violent offenders, but harsher discipline for those who commit the gravest crimes – or who may commit them.
The Cuomo administration intends to utilize a risk-assessment program like the one developed by the Laura and John Arnold Foundation, an organization that looks to use a fact-based approach to combating societal problems. The program aims to gauge an individual’s risk of reoffense by evaluating factors including age, criminal record, and previous failures to appear in court. The foundation has touted the predictive tool as a way to remove biases from the process of setting bail. Criminal justice reformers and public defenders worry it will have the opposite impact.
Members of the Cuomo administration stressed that they have yet to settle on a plan, or develop a program bill with the parameters for the program and that any judgement by outside groups is simply uninformed.
“Bail reform, when combined with an assessment tool, has the opposite effect of what they are suggesting,” Alphonso David, counsel to Governor Cuomo told Gotham Gazette of critics. “What we’ve seen when it has been implemented in areas of Kentucky and in the city of Chicago is a decrease in crime, a decrease in reoffending, and a decrease in jail population.”
Nevertheless, advocates are concerned that an impersonal evaluation tool will make it easier for judges to rationalize denying bail.
“Over the last couple of years we’ve been heartened to see an incredible amount of attention paid to the problems with our bail system — people languishing in jail for years who have not been convicted of anything, who simply can’t pay the price for their freedom and how our bail system disproportionately impacts people of color,” said Justine Olderman of The Bronx Defenders.
“Policy makers have vowed to fix these problems,” Olderman said. “Yet at the same time, they call for including dangerousness in the bail statute which will expand the reasons that a person who is presumed innocent can be held in jail. They seem to do so without any recognition that including dangerousness will undermine their bail reform efforts and will only exacerbate our current bail crisis.”
Lately, the conversation about bail has focused on preventing the poor from disproportionately having to serve jail time when they can’t afford to pay even small amounts of bail for minor crimes. City Council Speaker Melissa Mark-Viverito first announced plans to back a bail fund, then de Blasio followed suit with a public bail fund, followed by Democratic state Senator Michael Gianaris introducing legislation that would eliminate cash bail for certain individuals.
Gianaris said that he hopes there will be room for discussion of his plan given that the governor put the concept of bail reform in his 2016 agenda. “The debate is long overdue,” said Gianaris. “The bail system has no rational basis. It just imprisons poor people who have not been convicted, the rich simply pay bail.”
Gianaris acknowledged that the concept of basing bail on dangerousness has split progressives in the past. “This has been an ongoing debate with progressives falling on different sides of it. My bill doesn’t change what a judge considers. It just does away with the financial component of bail.”
Advocates say Cuomo’s proposal simply doesn’t jive with the rest of his progressive criminal justice agenda.
By David Howard King