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On Tuesday night, New York Gov. Andrew Cuomo quietly introduced legislative text for the state budget that would completely reverse the state’s new bail reform law, which has only been in effect since Jan. 1. If Cuomo succeeds in rolling back bail reform, he would not only exacerbate the coronavirus pandemic by ensuring that tens of thousands more people would be jailed this year, but he would also likely doom the closure of the Rikers Island jail complex, which hinged on bail reform reducing the jail population.
The death of Kalief Browder, a teenager who spent about three years incarcerated at Rikers, helped push New York lawmakers to eliminate cash bail for a wide range of offenses in April 2019. After the bail reform law passed, Cuomo called it “the most historic criminal justice reform in modern history in the state.” But starting in December, law enforcement started raising alarms about “dangerous repeat offenders” flooding the streets, and New York media outlets eagerly amplified the fearmongering campaign.
Currently, New York’s law prohibits cash bail for almost all misdemeanors and nonviolent felony offenses. To be clear, the existing law still allows judges to incarcerate thousands of people awaiting trial; it preserves cash bail and pretrial detention for people accused of felonies. But the new proposed language would be far worse than the status quo under existing bail reform law. While the proposal would completely eliminate cash bail, it would also dramatically expand judges’ ability to “remand” defendants, or to detain them indefinitely before their trial without due process protections.
The governor’s proposal also permits pretrial detention for a much wider range of offenses and allows judges to make guesses about the future “dangerousness” of a defendant (the likelihood that they will commit a new violent crime) based on the “weight of the evidence,” which flouts the presumption of innocence before a case goes to trial. Additionally, New York law has never permitted judges to consider “dangerousness” when setting bail, so it’s possible that including a “dangerousness standard” in New York law would lead to unprecedented levels of pretrial incarceration.
Finally, the proposal seemingly creates a new detention eligibility category for “persistent offenders,” or people who commit additional felony or Class A misdemeanor offenses while awaiting trial. “Remanding people for misdemeanors is something that has never been done in New York. The proposal would put vast numbers of people charged with low-level misdemeanors at risk of indefinite pretrial detention with no possibility of release,” said Scott Levy, chief policy counsel for the Bronx Defenders. The “persistent offender” category specifically includes crimes involving “harm to property.” For example, someone accused of two shoplifting offenses could be remanded under the proposed rollbacks.
Together, these changes may well result in more New Yorkers detained pretrial for longer amounts of time than ever before. According to an analysis by FWD.us shared with Slate, the governor’s proposal would cause tens of thousands of New Yorkers to be jailed each year who would not be incarcerated under current law. While the unfairness of cash bail would be eliminated from this equation, the new system would preserve the existing structure of coercive plea bargaining that distorts justice by extorting criminal convictions from legally innocent people who are detained pretrial.
Law enforcement officials’ uproar over bail reform was not grounded in reality. After the new bail reform law went into effect, New York City continued to be one of the safest big cities in America, where crime rates are lower than any point since the 1950s. At the same time, bail reform is helping people accused of crimes keep their jobs and support their families instead of suffering in jail. According to the Data Collaborative for Justice, existing bail reform law will allow legally innocent people to remain free in 20,000 cases in 2020—and that’s just in New York City.
Cuomo’s insistence on bail reform rollbacks is particularly egregious given that New York is currently the epicenter of America’s coronavirus crisis—and rollbacks will ensure that thousands of New Yorkers circulate through city jails in 2020 who would otherwise remain free awaiting trial.
New York City jails may actually be the most dangerous place in America as far as the coronavirus is concerned. On Wednesday, the Guardian reported that almost 180 people incarcerated at Rikers and 141 corrections staff were infected with the coronavirus. The infection rate in New York City jails is more than seven times higher than the rate for all New York City residents and at least 75 times higher than the rate for all Americans. Rikers does have an infectious disease unit with 88 beds, but the unit has no ventilators for incarcerated patients, and the jail’s chief physician estimates that about 20 percent of incarcerated people with the virus will need hospitalization, and 5 percent will need ventilators. Incarcerated people are also fundamentally unable to practice social distancing; one incarcerated woman told NY1 that dormitory beds weren’t even 6 feet apart.
Bail reform rollbacks would also create an enormous obstacle to New York City’s plan of closing jails on Rikers Island and constructing four replacement jails located near borough courthouses. The current plan, which the City Council approved in October, relies on a projected New York City jail population of 3,300 by 2026. On March 31, there were 4,604 people incarcerated in city jails, the lowest New York City jail population in decades. The city acknowledged that bail and parole reform are necessary to reduce the population to 3,300; in other words, if Cuomo rolls back bail reform, it’s unclear whether jails on Rikers Island would actually close in 2026 as the city projected.
If the city did choose to close Rikers in 2026 following bail reform rollbacks, it’s possible that elected officials would increase the size of the planned borough jails, which would mean that the city is spending $11 billion to increase carceral capacity. No New Jails NYC organizers (including myself) sounded the alarm about this months before the council voted on the jail construction proposal, noting that the Rikers closure plan is not legally binding and relies on the discretion of a future mayor and council. Even so, it’s not actually clear that the current mayor is invested in closing Rikers or further reducing the jail population. Mayor Bill de Blasio called for bail reform rollbacks just two days after the new bail reform law went into effect, and even spent time in Albany lobbying for changes.
Ultimately, the reversal of New York’s bail reform law will ensure that thousands of New Yorkers are exposed to a deadly virus while New York’s hospitals are drastically overburdened. The legislature should reject the governor’s callous effort to ramp up incarceration.