Bail, once Albany's top issue, gets tweaked in state budget deal

ALBANY — State lawmakers wrapped up business Friday by acting on what had been the top issue at the State Capitol prior to the COVID-19 pandemic: Bail reform.

The Senate and Assembly scaled back some of the landmark bail and discovery changes that had become effective just three months earlier. They tucked the policy amendments into a $177 billion budget plan the houses finished approving around 3:30 a.m. Friday.

The result is that just months after eliminating bail for most misdemeanors and nonviolent felonies — an estimated 90 percent of criminal cases in New York — more than 20 crimes will return to being considered “bail eligible.” The new law becomes effective in 90 days.

In addition, requirements compelling prosecutors to share evidence with defense attorneys within 15 days of an arrest will be softened in most cases. And lawmakers authorized $40 million to help law enforcement staff meet the deadlines.

It was a win for Republicans, law enforcement and Long Island Democrats who had urged the Democratic-led legislature to revisit the issue.

“I have no doubt New Yorkers will be safer when this goes into effect,” Sen. Todd Kaminsky (D-Long Beach) said. “I think all the changes are common sense and are defensible.”

It was a setback for more liberal-leaning Democrats, defense attorneys and criminal-justice advocates who had praised last year’s changes. They said the action was taken to protect Long Island Democrats politically. 

“We had finally begun to move past the broken and racist system that criminalized poverty and targeted people of color,” said Tina Luongo, a criminal defense attorney at the Legal Aid Society. “Yet in the face of racial fear mongering, our ‘progressive’ leaders cowered to the law enforcement agenda, bringing us back to the old status quo and betraying those who have fought so hard for change.”

Charges returning to the list for potential bail or remand include any crime involving a fatality, “high-level” drug offenses, burglary of a “dwelling,” escape and bail jumping, enterprise corruption (read: gangs and mob) and an array of domestic violence, sex and hate crimes.

Bail or remand also could be imposed on “repeat offenders” when the subsequent charge involves a felony or high-level misdemeanors.

“This addresses the really serious offenses that we wanted to make sure judges continued to have discretion on,” Sen. James Gaughran (D-Northport) said.

He contended the new version of bail still upholds the goal of the 2019 legislation: “People should not be held on bail where there are lesser crimes.”

Among discovery changes, prosecutors in many cases will have 20 days instead of 15 to provide evidence to defense attorneys when a suspect is in custody; 35 when not. Also, the state will earmark $40 million to help cover staffing costs associated with discovery compliance.

There are provisions applying specifically to gang-violence cases to shield identities and information about witnesses.

For some, the rewrite doesn’t go far enough.

Sen. Monica Martinez (D-Brentwood) wanted judges to have discretion to demand bail on most crimes. 

“Some of us have vulnerable communities, such as mine, that are always hit with crime,” Martinez said. While calling the change a step forward, she added: “To tie judges’ hands, that is something I can’t support.”

Republicans had pushed for a full repeal of the 2019 law. That was never realistic, but they cheered the changes as modest improvements.

“Under the circumstances everybody is operating under, I’m somewhat satisfied with the modifications we got,” Assemb. Michael Montesano (R-Glen Head) said. “I think this was a response to pressure — if we didn’t put the pressure on, we wouldn’t have this result.”

But, notably, it won’t change Republicans’ plans to use bail in election campaigns, even amid the uncertainty brought by the pandemic.

 “I don’t think this in any way takes the issue away,” Assemb. Edward Ra (R-Franklin Square) said. “Right now, it’s not a huge focus because of the circumstances we’re all facing. But I certainly think this will be a central issue this fall.”