New York State Assembly Chamber. Photo via Flickr. New York State Assembly Chamber. Photo via Flickr.

Bail reform remains the most challenging issue for lawmakers in Albany to resolve as they continue to negotiate a comprehensive package of criminal justice reform bills, which are expected to be approved later this month.

Democrats, who now control both houses of the state Legislature, are still working out how courts will decide who should be incarcerated ahead of their trial and who should be released if cash bail is eliminated or significantly limited.

Assemblyman Joseph Lentol, D-Brooklyn, who chairs the Codes Committee, said he and his colleagues have met behind closed doors to discuss the legislation more than once this year and have yet to reach an agreement on it.

“I think that’s the most difficult bill because people want to put things in it, and some people don’t want to put other things in it—whether dangerousness or public safety should be in the bill, whether there should be cash bail or no cash bail,” Lentol said. “Those issues are pretty tough.”

It’s so tough, in fact, that the New York Justice Task Force spent most of the last two years studying the issue before releasing a report earlier this week with recommendations for ending cash bail. The task force was first created by former Chief Judge Jonathan Lippman to examine issues of criminal justice reform in New York.

The panel’s report recommended that most defendants facing misdemeanor and nonviolent felony charges be released before trial either without bail or the least restrictive form of bail possible. It recommended an exception in cases where a defendant is facing a life sentence or a nonviolent Class B felony that carries a mandatory state prison sentence.

Prosecutors, under the recommendations, would be able to ask the court to set bail or consider incarceration before trial based on a defendant’s alleged threat to public safety or likelihood of returning to court. That’s the same position held by the District Attorneys Association of the State of New York, which responded positively to the findings.

“Our No. 1 concern is to make sure any changes to the bail system in New York are safe and meaningful,” said Albany County District Attorney David Soares, the current president of DAASNY. “Defendants charged with certain nonviolent crimes should be presumptively released. But there are a small number of crimes which we believe prosecutors should have the opportunity to rebut the presumption of release at arraignment.”

Soares encouraged state lawmakers to consider the report before they move forward on bail reform, which has turned out to be a sticking point on other criminal justice issues this year.

Democrats have been tasked with overhauling a system that, until this year, had little chance of reform. Republicans, who controlled the state Senate for most of the last decade, opposed such reforms and blocked them from coming up for a vote. Democrats now hold a majority in the chamber after last year’s elections.

The difficult question for them to answer in the coming weeks is how they plan to end or severely limit the use of monetary bail while protecting certain crime victims and ensuring that defendants will return for future court appearances.

Bail has historically been used by prosecutors as an incentive for the accused to appear back in court. Many defendants, however, do not have the resources to pay for bail, which advocates have said creates a criminal justice system that favors high-income defendants over those with less money.

One option being considered by lawmakers would allow defendants charged with nonviolent felonies and misdemeanors to forgo incarceration or posting bail if they agree to wear an electronic monitoring device. That would allow the court to monitor that person’s location to ensure they haven’t left the area, making it more likely that they’ll appear for future court appearances.

Assemblywoman Latrice Walker, D-Brooklyn, sponsored a bill aimed at reforming the bail system last year that allowed that in some cases. She said this week that allowing that kind of monitoring as a widespread replacement for bail may be problematic.

“My biggest concern is that I don’t want to change mass incarceration to mass surveillance,” Walker said. “So, I’m very concerned about the utilization of electronic monitoring devices for misdemeanors and nonviolent felonies.”

Another option being considered by lawmakers are so-called risk assessment tools, which would give judges less discretion when deciding whether someone should be incarcerated before trial. The method would require judges to, instead, use a rubric to make that decision based on the answers to a series of questions posed to the defendant about their background and personal information.

But that proposal has also raised red flags among lawmakers, some of which have questioned whether it could be used fairly among all defendants. Walker supports it, but says the questions have to reflect the realities that low-income defendants often face, such as their housing or employment status.

“I think it needs to become more responsive to the realities of what’s happening on the ground,” Walker said. “If the idea for us is to remove poverty from the equation of bail and just make it about a person’s return to court, which is the true mission of bail, we have to make sure we’re sensitive to setting up a situation where poverty continues to keep people in prison as opposed to allow them back into the community to be productive citizens.”

Consider if a judge asks the defendant where his permanent residence is as a factor of whether or not he will return to court, Walker said. Some defendants who may be staying in transitional housing or a shelter may not have a permanent address, she argued, so that kind of question could disenfranchise them in ways that it wouldn’t for high-income defendants.

Lentol said lawmakers have also expressed concerns about those questions attempting to evaluate a defendant’s alleged threat to public safety, or dangerousness. He argued that allowing the court to label a defendant as someone likely to harm others may run counter to the spirit of the legislation since that person had not yet been convicted.

“If future dangerousness is an issue, then that’s a really slippery slope,” Lentol said. “Then you’re talking about taking someone’s liberty away without them being convicted of a crime.”

There are exceptions to that argument, though, Lentol said. Cases of misdemeanor domestic violence, for example, may present challenges because the court would be presented with a situation where the defendant could be released only to make contact with the alleged victim. That’s something lawmakers want to avoid, Lentol said.

“I believe we should be concentrating on those crimes where there’s direct contact with the victim that we set aside for a particular action,” Lentol said. “You have to protect victims.”

At the same time, he said, it’s been a difficult balance for lawmakers when discussing how much discretion courts should have on pretrial detention. Lentol said if cash bail is eliminated, some judges may actually be in favor of having less control over who should be released before trial.

“I believe it’s going to be very hard for a judge not to hold someone who’s a defendant in the case if he or she has to make the decision on the dangerousness of the individual, or if there’s a threat to public safety,” Lentol said. “He or she is not going to want it on their head that they let someone out and they committed another crime.”

A final proposal is expected to be announced in the coming weeks, though lawmakers could negotiate the legislation into the state budget or at any point before they’re scheduled to leave Albany for the year in June.

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