The division between New York City-area district attorneys and their upstate counterparts over proposed statewide bail reform was on display at a New York State Bar Association panel on Wednesday. But the concerns expressed by certain upstate-based lawyers were mostly logistical.
No panelist, or lawyer asking questions from the audience, took issue with the “mass incarceration”-focused data and notion underlying Gov. Andrew Cuomo’s planned legislative proposal to eliminate monetary bail for defendants facing misdemeanor and nonviolent felony charges.
It appeared accepted that cash bail often unfairly targets the poor and minorities, locking them behind bars for days and months when wealthier suspects can make bail and walk free. Indeed, data and charts displayed on a large screen, including by Michael Green, a state Division of Criminal Justice Services’ executive deputy commissioner, brought home for the audience of more than 70 lawyers both the race-based disparities in who remains locked up and simply the sheer number of misdemeanor and nonviolent defendants sitting in jail.
For instance, Green, one of five panelists, displayed data showing that, according to annual estimates, in New York City about 12,100 misdemeanor defendants and 9,600 nonviolent felony defendants are kept locked up beyond five days each year because of an inability to pay bail; and they account for 74 percent of the 29,300 total defendants held beyond five days.
And in New York City, about 80 percent of those misdemeanor and nonviolent felony defendants are black or Hispanic.
Meanwhile, in the counties outside of New York City, an estimated 14,400 misdemeanor defendants and 9,100 nonviolent felony defendants are kept behind bars beyond five days because they can’t pay bail, representing 84 percent of the 27,900 people held past the five-day mark, Green’s charts showed.
About 51 percent of the non-New York City misdemeanor and nonviolent felony defendants held past five days are black or Hispanic, Green said.
Moreover, he pointed out that the numbers on non-New York City areas do not include town and village court cases because statistics from those courts were not available.
After Green displayed and discussed those numbers, and a raft of additional charts and data, the audience of lawyers gave him a loud round of applause in the middle of the hour-long panel, which was held at the New York State Bar Association’s annual meeting in Manhattan. Green pointed out, meanwhile, in reference to the cost to society and the defendants themselves who sit in jail, “Imagine how many of them lose their jobs” by not showing up for work.
He said he strongly supported Cuomo’s proposal to reform the bail system statewide, even if it resulted in just one-half, or one-quarter, of those held for days instead being set free.
But some audience members and panelist J. Anthony Jordan, the DA for Washington County, questioned the logistics, risks and costs to the government associated with eliminating cash bail for many defendants.
“Who writes the check if the defendant doesn’t show up” for a later court appearance, Jordan asked at one point, referring to the costs to law enforcement of having to find and retrieve the person.
Later, he said that Cuomo’s reform proposal seemed “largely unworkable” in the smaller, rural counties. For instance, he said that the extra motions, appeals and hearings potentially associated with a pretrial process that has eliminated cash bail could “bury the office” in smaller counties, which generally have less staff. The result, he said, is that achieving a disposition on the alleged crime itself will get pushed back.
But panelist Insha Rahman, a project director from the Vera Institute of Justice, which supports Cuomo’s proposal and which does data-based research on bail effects as part of its work aimed at ensuring fair justice systems, answered Jordan by proposing that smaller counties devise something similar to a centralized arraignment part to efficiently handle all the pretrial work in a central place.
Earlier this month, Manhattan District Attorney Cyrus Vance Jr. announced that his prosecutors will no longer ask for bail in most misdemeanor and violations cases. He joined Brooklyn DA Eric Gonzalez who announced a similar change last year. Yesterday, Westchester County DA Anthony Scarpino Jr. announced that his prosecutors have stopped seeking bail in most misdemeanor criminal cases, according to news reports. But most DAs in the state have not announced such changes, to date.
Cuomo earlier this month announced that reforming cash bail would be a centerpiece of his forthcoming criminal justice legislative package. He said he intends to introduce legislation to eliminate monetary bail for most defendants facing misdemeanor and nonviolent felony charges.
For those facing more serious charges, Cuomo would provide monetary and nonmonetary bail options, but only after a judge conducts an individualized review of both the defendant’s case and his or her personal and financial circumstances.