Amid uproar, Senate Democrats to offer compromise on bail law

Yancey Roy for Newsday

Originally published in Newsday

Under public pressure, State Senate Democrats are set to propose an overhaul to the state’s freshly minted and controversial bail law.

The Democrats will recommend abolishing bail altogether while increasing the types of crimes for which a suspect can be held and increasing judges’ authority to do so.

In sum, their plan would somewhat track the federal system in which a suspect is either jailed or monitored by the court system, or is released on his/her own recognizance until a later court date. Detention or monitoring would hinge on the nature of the alleged crime, criminal history and potential flight risk. Judges would follow guidelines to make such determinations.

Either way, money for cash bail would no longer be part of the equation.

The proposed changes would still leave New York with the “most progressive” law in the nation regarding bail and remand, Senate Majority Leader Andrea Stewart-Cousins said.

But it would also be a response to criticism from judges, prosecutors and police that the current bail law — which is just six weeks old — had taken away their power and discretion to detain dangerous suspects.

“We believe that this gets to the heart of the issues and that it is still progressive,” Stewart-Cousins (D-Yonkers) said. “Getting rid of cash bail is really important.”

Doing so, she said, would address a key complaint from progressives: The old cash bail system effectively was a two-tiered justice system, delineating those with enough money to post bail and those without.

Stewart-Cousins’ proposal likely will trigger blowback from some activists and perhaps some members of the Democratic-led Assembly, who want no changes to the law. Asked about the possibility, Stewart-Cousins asserted: “When we look at what other people (states) have done, this is still the most progressive when it comes to ending cash bail.”

Albany lawmakers had overhauled the state’s criminal statutes last year, one of the most high-profile changes amid a wave of progressive laws enacted in 2019. Chiefly, the law eliminated cash bail for most misdemeanors and nonviolent felonies and shortened the time in which prosecutors must share pretrial “discovery” evidence with defense attorneys.

But even before the statute took effect on Jan. 1, law enforcement and Republicans began saying it would result in too many dangerous criminals being released. New York Mayor Bill de Blasio, a liberal Democrat, said he believed a January crime spike was related to the law, though others said city data didn’t support the claim.

Within weeks, Stewart-Cousins began a series of meetings with prosecutors and police to discuss alterations. Under her new plan:

  • All misdemeanors — with the exception of certain hate crimes and sex crimes — would no longer be subject to bail requirements.
  • With all other crimes, a judge would have authority to either remand the suspect to jail or impose electronic monitoring or order some other type of monitoring. Flight risk and a person’s criminal record (“persistent offenders”) could be factors.
  • Felony domestic violence charges which aren't treated as "bail eligbile" now would become "remand eligible" or "monitoring eligible.
  • Any crime involving a fatality would be eligible for remand, regardless of whether it involved a crime such as murder, or all levels of manslaughter.
  • The state would begin collecting data to see how the bail law is working — including information about recidivism, the percentage of suspects being held/released and racial demographics.
  • Stewart-Cousins also said they are considering extending deadlines for prosecutors to turn over discovery evidence.

The plan is being circulated among the 40 Senate Democrats who sit in the 63-member chamber to form a consensus. Notably, it echoes stances Gov. Andrew M. Cuomo had taken last year amid the bail debate, but which were knocked by fellow Democrats as insufficiently progressive.

Democrats in the Senate have been under pressure to protect a political majority they won in 2018 and especially are concerned about four first-term lawmakers from Long Island. Recently, the state Democratic chairman has said the bail law, passed in 2019, could cost the party Long Island seats in this fall’s elections unless changes were made.

The bail law has presented Republicans with an election-year issue, with Senate Minority Leader John Flanagan (R-East Northport) vowing to “hammer this issue every single day.”

Long Islanders have been the key bloc in pushing their fellow Senate Democrats to entertain amendments.

“It is important to us to give police and law enforcement the tools they need to do the job. And I’m sure we can have a fair system that also protects the public,” said Sen. Todd Kaminsky (D-Long Beach), one of the lawmakers who sat in on the meetings with stakeholders.

Long Island’s two district attorneys said the new plan is encouraging.

Suffolk County District Attorney Tim Sini said in an email that the current law doesn’t sufficiently protect victims, witnesses or communities, but that he was “encouraged by the Senate leadership’s effort in outlining ways” to address those issues.

Nassau County District Attorney Madeline Singas said she would have to review the specifics but applauded the general idea.

“Cash is out of the system, but we are able to take into account things that we can’t now,” Singas said. “I’m encouraged by the fact that they want to leave us in a better place than we were before. To me, it’s a huge step forward.”