NY bail reform scaled back

John Christensen

Gov. Andrew Cuomo and state lawmakers have scaled back a series of controversial changes to the state’s cash bail system that had frustrated law-enforcement since taking effect the first of the year.

Cuomo and legislative leaders reached an agreement last week, returning several misdemeanor and felony crimes that can be subject to bail orders, allowing judges to keep a defendant in jail while awaiting trial unless they can reassure the court of their appearance by putting up cash or signing a secured bond.

Last year, Cuomo and the legislature controversially approved the “Bail Reform” measure, effectively ending cash bail for most misdemeanors and class E felonies, requiring judges to release people charged with those crimes, with no power or discretion to impose any bail or bond of any amount. Those reforms were uniformly criticized by law-enforcement officials across the state when they took effect Jan. 1.

“In less than four months after the effective date of bail reform, legislation was passed reforming the reform,” says Yates County District Attorney Todd Casella. “This simple fact is a clear indication that the state legislature did not understand or appreciate what it was doing when they hastily reformed the state’s bail system.”

Now, the state has scaled back those reforms, returning more than a dozen crimes to the list eligible for a cash bail order.

• Any crime alleged to have caused a death

• Promoting an obscene sexual performance by a child

• 1st degree grand larceny

• Failure to register as a 3rd degree sex offender

• 2nd degree burglary if someone enters the living area of a home

• Escape from custody

The measure also allows judges to apply cash bail for repeat arrests in some cases, including arrests for felonies committed while on probation or parole.

Yates County Sheriff Ron Spike says, “This is a step in the right direction to give judges some discretion on community safety for additional serious offenses.”

Casella maintains that step does not go far enough. “Rather than restore authority to the judges to consider a defendant’s danger to the community, potential for committing subsequent offenses, and flight risk, the state continues to create a list of offenses that warrant bail eligibility. The problem with this black and white approach to bail is that it neglects all the grey areas, disregards public safety, and continues to demonstrate a distrust in judges.” 

Evidence Discovery

The agreement on evidence discovery for the prosecution of criminal cases also extended the original 15-day mandate to 20 days or 35 days.

Under the new changes, when a defendant is detained before trial awaiting the criminal case, the prosecution must meet its discovery obligations within 20 days of arraignment. When the defendant is not in custody during the pending criminal case, the prosecution must meet its discovery obligations within 35 days of arraignment.   

Spike says it is helpful but did not go far enough. “It is still a big burden on police and the District Attorney,” says Spike, “but it is at least a small step in a reasonable direction. The time frame for automatic discovery is now dependent on if the defendant is detained pre-trial.” 

Casella states that the new agreement does little to address the safety of witnesses and victims of crimes. “Defendants are still permitted to apply to gain access to a victim’s home, and the prosecution still has to provide the names and adequate contact information of all non-law enforcement witnesses.”

Casella says even less was done to temper the burden placed on prosecutors to comply. 

“Extending the timeframe that discovery is due is of little help when discovery is tethered to speedy trial. It will always be a rush to get everything in, reviewed, redacted where necessary, and turned over so that we can stop the speedy trial clock,” Casella says, adding, “The only real change was to discovery on traffic tickets not being required until 15 days prior to trial. Much like the initial discovery reform, this reform was poorly thought out, and done without consideration of consequences on those most adversely effected by the law, victims of crime.”