State Sen. Monica Martinez, from Suffolk County, recently introduced a new bill that goes in a different direction that would completely eliminate cash bail, but allow judges to decide case by case whether someone should be held pretrial.
The Long Island Democratic state Senate delegation is taking a multi-pronged approach in its attempt to amend the state’s new bail reform law, proposing different alternatives and testing the waters for support. But all six – especially the four freshmen – still face a difficult path to even modest victory on a divisive issue. And failure could prove harmful in the November elections.
The Long Island Six have been trying to change the bail reform law since it passed in April last year, long before it went into effect and conversation about amendments hit a fever pitch amid anti-Semitic attacks. The new law eliminates bail for misdemeanor and non-violent felony charges and limits what judges can consider if they set bail for violent felonies. Although some seeking amendments characterize their attempts as fixing unintended consequences of the legislation, the full impact of bail reform is still unknown, since it has only been in effect for about two weeks. Nothing significant has changed between when the law passed and now other than that more people, especially skeptics and critics of the policy, are paying attention – and Republicans are highlighting examples of people released on bail getting rearrested.
To make matters more complicated, much of the public doesn’t necessarily understand what exactly the legal change has wrought. “I think a lot of communities on Long Island don’t have peace of mind because they don’t understand the bill,” Assemblywoman Judy Griffin from Nassau County told City & State. “A lot of them are just reading what they read in the paper, or they’re reading the sensational cases or they’re reading the fear mongering.”
Although it’s too soon for any hard data about the impact bail reform actually has on public safety, Griffin said that instituting changes would make her community “feel safer,” like expanding judicial discretion. And that’s the crux of the push to amend the law – the fear that people who will cast votes in the upcoming November election feel like their safety has been compromised.
That leaves Democrats on Long Island in a bind because they all voted for legislation they thought was imperfect as part of an omnibus budget bill. The vote puts them on the hook for reforming the reforms for scared constituents, lest they get blamed and voted out of office.
Looming large over this current issue is the fate of two Democrats on Long Island in 2010. After wresting seats from Republicans in 2007 and 2008, state Sens. Craig Johnson and Brian Foley voted in favor of a highly unpopular payroll tax on Long Island and other New York City suburban businesses in 2009 to help fund the Metropolitan Transportation Authority. Many Long Islanders felt that their senators bowed to pressure from their colleagues from New York City and imposed a mandate that largely would not benefit them. So they immediately replaced those Democrats with Republicans, ultimately costing Democrats their short-lived majority in the state Senate. “This is a critical moment politically, and even historically,” Larry Levy, executive dean of the National Center for Suburban Studies at Hofstra University, said. “And the question is whether (leadership is) going to realize that the votes they took, particularly on bail reform, pushed the Long Island and some of the Westchester senators too far and made them vulnerable.”
Polling soon after the budget passed last April suggested that while eliminating bail for misdemeanors and non-violent felonies was largely viewed as favorable statewide, opinion was mixed in the suburbs. Since then, both Democratic countyexecutives on Long Island have called for changes to the bail reform law. News and social media is inundated with sensational-sounding stories about repeat offenders getting released without bail. Lawmakers have started hearing from their constituents who feel unsafe and want change.
And Republicans are already more than ready to pounce on any perceived weakness in November. “Politically, this is akin to the MTA payroll tax,” Jesse Garcia, chairman of the Suffolk County Republican Committee, told City & State. “This one is even worse – it affects public safety.” He expects bail and other criminal justice reform to play a central role in the 2020 elections.
It’s now up to the Long Island state Senate Democrats and other suburban lawmakers who may find themselves in similar positions to capitalize on the door that has been opened for them, although none that spoke with City & State said they were thinking about any political ramifications. State Senate Majority Leader Andrea Stewart-Cousins and Gov. Andrew Cuomo have both either expressed a desire for changes, or at least willingness to consider them. State Sen. James Gaughran, from Long Island's North Shore, is one of the Democrats leading the charge for amending the bail law. He said that he and his colleagues are trying to keep their options as open as possible through the introduction of multiple bills. “The reason for the different sort of pathways here is because we want to see what we can get support for,” Gaughran told City & State. He introduced legislation last summer that would expand the list of crimes for which bail or pretrial detention could be imposed because he thought that sticking within the established framework of what became law could gain traction.
State Sen. Monica Martinez, from Suffolk County, recently introduced a new bill that goes in a different direction that would completely eliminate cash bail, but allow judges to decide case by case whether someone should be held pretrial. It would also create an appeals panel to hear challenges to any pretrial detention a judge decides on. This offers an alternative to Gaughran’s legislation that ultimately achieves what they and their suburban colleagues want – more discretion for judges. Martinez told City & State she wants to “make sure the power (judges) once had is restored,” although her legislation would also allow them to consider the physical risk a defendant may pose to a “reasonably identifiable person or persons.” The proposal’s goal is to end economic disparities in detention by doing away with bail for everyone, while allowing for pretrial detention if the judge deems it necessary based on flight risk and safety.
The likelihood of major changes still remains slim, particularly since any measure would also need approval from the Assembly, and Speaker Carl Heastie remains opposed to any revisions. Returning or expanding judicial discretion is also widely opposed by criminal justice reform advocates. In particular, they reject any provision that would allow judges to consider dangerousness when setting bail or deciding on pretrial detention, which was not allowed under the old bail law either. Bail is only meant to ensure someone returns for their court date, not to jail someone for a crime they have not been convicted of yet.
But the six Long Island state senators represent a strong voting bloc if united. State Sen. Todd Kaminsky, the dean of the Long Island delegation, suggested that they will also try to unify other suburban Democrats seeking changes, and anyone else who has expressed concern. State Sens. Peter Harckham of Westecheter, James Skoufis of the Hudson Valley and Diane Savino of Staten Island so far have explicitly supported reforming the reforms, bringing the potential voting bloc to at least nine.
Kaminsky insisted to City & State that he doesn’t expect the issue to cause fissures in the Democratic conference. But the issue of bail could pose a crucial leadership test for Stewart-Cousins as she is forced to balance the needs of vulnerable moderates in her conference with the progressive agenda other members want done. And it could also serve as a test of power for moderate Democrats within the majority. “The leadership has to understand that if they want a big majority – or any majority at all – they’ve got to at least incorporate the concerns of members that are in moderate suburban swing districts,” Levy said. “And the regional delegations have to realize that if they don’t work together and leverage their clout, nobody’s going to pay attention to them. They can basically help each other if they listen to each other and act in good faith.”