Under pressure from law enforcement, state lawmakers say they are now willing to make significant changes to the bail reform laws that have been in effect for less than two months.

Currently, judges are prevented from setting bail on almost all misdemeanors and non-violent felonies, but violent crimes and some lower level charges that involve domestic violence are still bail eligible. Judges are required to only consider a defendant's risk of not returning to court, not their past criminal record.

The proposed changes would erase cash bail from the system, but would instead allow judges to indefinitely jail suspects charged with felonies and some misdemeanors before trial based on their prior criminal records or their risk of not returning to court.

“We believe that this gets to the heart of the issues and that it is still progressive,” Senate Majority Leader Andrea Stewart-Cousins told Long Island's hometown newspaper Newsday, in announcing the changes. Stewart-Cousins claimed that even with the changes, New York would still have the "most progressive" bail reform in the country.

Tina Luongo, the attorney-in-charge at the Legal Aid Society, said that these proposed changes would introduce the "dangerousness" standard into pretrial detention that New York's lawmakers had taken pains to avoid for decades.

"This isn't a progressive move to end money bail, this is a cave to fearmongering of law enforcement and DAs that cherry picked a few cases to try and get the Senate to do exactly what they're doing," Luongo said. "Which is to undo the reforms that were debated and discussed, analyzed with data, and were well thought out, that started on January 1st. It adds dangerousness in a state where, progressively, it has not had dangerousness for over 40 years."

Stewart-Cousins's proposals also override the recommendations of the New York State Justice Task Force, a group of judges, district attorneys, and police commanders tapped to advise state lawmakers while they were crafting the reforms. The task force explicitly told lawmakers to leave the dangerousness standard out of the law that eventually passed.

"The Task Force ultimately determined that although a court should not consider whether a defendant poses a threat to public safety, it should be allowed to consider whether a defendant currently poses a credible threat to the physical safety of an identifiable person or group of persons, such as in domestic violence cases," their report states.

"This was all debated and discussed last year, and what was moved forward and signed on by all three groups, including the governor, was that the bail statute that just went into effect a month ago was the best way forward in a progressive way," Luongo said.

Steve Zeidman, a law professor at CUNY and the director of the school's Criminal Defense Clinic who has advocated for bail reform, agreed with Luongo's interpretation of the changes.

"Judicial discretion—meaning the harsh and improvident exercise of judicial discretion—is what led to the crying need for bail reform in the first place," he said. "The notion that reforming bail reform means giving judges greater discretion would be funny if it weren't so tragic."

Asked how judges would determine whether to jail or release a defendant under her proposal, Stewart-Cousins told Gothamist in a statement, "We would give judges some discretion but with extremely strict guidelines and guardrails and almost all misdemeanors and non-violent felonies would not be eligible for remand." Her office did not elaborate on those "guidelines and guardrails."

Under the new changes being considered, defendants would be given a hearing within 48 hours of arraignment to determine if they will be released or jailed. Defendants would be able to request subsequent hearings if they are jailed.

Lawmakers are also considering making changes to the discovery reforms that have been in effect since the beginning of the year, adding to the 15 days that prosecutors currently have to turn over evidence to the defense before trial. The changes would also require the state to collect data on how the bail law is working, including information on recidivism, the percentage of suspects being held or released, and racial demographics. Both of Long Island's DAs praised the changes in the Newsday story.

Asked about the reported move to rework bail reform in Albany, Governor Andrew Cuomo called it "a concept," telling a Long Island radio host "that's my original plan I put forth last year. Let's take money out of the cash bail system."

Assembly Speaker Carl Heastie's office has not yet responded to our request for comment. Last week, Heastie pushed back on the idea that the law needed to be changed so soon.

The leadership structure of the NYPD has been lobbying hard for the state to roll back bail reforms. NYPD Commissioner Dermot Shea blamed bail reform for a spike in crime over the first four weeks of the new year, though he has provided no evidence to back up his assertions. Mayor Bill de Blasio has also argued that judges should be given more discretion, but has not said what that would look like.

One of the cases that law enforcement has pointed to as an example of a need to change the bail reform involves Tiffany Harris, who was repeatedly arrested and then released after a series of allegedly anti-Semitic assaults. But one of Harris's alleged victims told Gothamist/WNYC last week that she does not want to see her case used as a reason to roll back the law.

"The fact that bail reform has taken the hit and has been the scapegoat in this, and that this has been used as sort of a poster child for that, has been upsetting to me,” the victim said.

Previously, when judges were allowed to use their discretion to set cash bail, they disproportionately locked up poor people of color—for instance, black people charged with felonies in large cities were more than 25 percent more likely to be held on bail than white defendants, and young black men were 50 percent more likely to be held pretrial than their white counterparts. Algorithms designed to determine dangerousness have also been shown to be racist.

Luongo said that lawmakers like Stewart-Cousins "understand the effects of dangerousness. They go on record calling dangerousness racist. And I'm hoping they rethink all of this."

"It will undo our entire bail system. This is not a small step."

[UPDATE / 2:28 p.m.] Assembly Speaker Carl Heastie was asked about the proposed changes on Wednesday afternoon:

Assembly Speaker Carl Heastie is asked if he feels undermined by the Senate or de Blasio on bail reform.



"I'm a big boy," he said. "I'll be fine." — Jon Campbell (@JonCampbellGAN) February 12, 2020

Bail reform proponents had already scheduled rallies in the capitol building on Wednesday afternoon when news of the Senate's proposals landed.

"This is a Jim Crow-style rollback," Assemblymember Tremaine Wright told the crowd.

"What we are seeing here is a continuation of a national movement of Willie Hortonism to maintain our system of mass incarceration," Tiffany Caban said.

Stanley Fritz, a representative of the group Citizen Action of New York, was even more pointed.

New Yorkers had worked hard to give Democrats the majority in both houses, he said. "And now a couple of white dudes with buzz cuts and MAGA flags in their backyards and closets are mad at you, and you want to backtrack?"

With reporting from Nick Pinto.