Gov. Andrew Cuomo signed sweeping criminal justice reforms into law last month that will eliminate cash bail and pretrial detention for most low-level offenses.
Under the new law, those arrested for misdemeanor crimes and nonviolent felonies will be issued a desk appearance ticket rather than face a judge for an arraignment, where bail is traditionally set.
Judges may still use cash bail and detain those who commit violent felonies including sexual misconduct offenses and domestic incidents. In some instances, judges can opt for non-monetary ways to ensure court appearance, such as electronic monitoring or the supervision of a pretrial services agency.
Statewide, there are 16,000 people being held on bail as they await trial.
Advocates of the new law say it addresses policies that have disproportionately impacted minorities. “Today’s legislation is a critical step in addressing the systemic injustice and cruelty that was responsible for Kalief Browder’s death and has taken an enormous toll on black and brown New Yorkers,” New York Civil Liberties Union executive director Donna Lieberman said in a statement.
In 2010, then-16-year-old Kalief Browder was accused of stealing a backpack and spent the next three years in jail on Rikers Island awaiting trial because his family couldn’t afford the $3,000 bail set by a judge.
Ultimately, the case was dropped and Mr. Browder committed suicide in 2015, shortly after his release.
“That shouldn’t happen,” said Riverhead Town Justice Lori Hulse in an interview last week. “If there are judges who are inappropriately setting bail or setting excessive bail routinely, those bails should be appealed,” she said, noting that she does not think the system should be abandoned.
In her courtroom, Ms. Hulse said bail is set solely to ensure a defendant’s return to court and is set after reviewing the person’s relation to the community and risk of flight. “It acts as collateral. It’s not intended to be punitive,” she said.
State Assemblyman Anthony Palumbo (R-New Suffolk), a former prosecutor, debated against the measure in the state legislature and said Tuesday that it goes “too far.”
Among his concerns are that manslaughter, a charge that results from many drunk driver cases, and many drug charges, are not considered violent felonies. “If I sell enough fentanyl to kill the entire town of Southold, I must be released. It’s scary because this is the unintended consequence,” he said. “Removing discretion from the court is always dangerous.”
Mr. Palumbo would have rather have seen a pilot program implemented with misdemeanor crimes in place of the sweeping legislation.
The new law also requires the local justice court to remind defendants of upcoming court appearances via phone call, text message, email or first class mail, which Ms. Hulse said will put further strain on the court system.
“It creates a burden on the taxpayers of Riverhead because of arrest warrants,” she added. “The police are going to have to look for those people and bring them in — presumably the ones we would have set bail on. But it remains to be seen whether or not this is something that will result in many less people returning to court.”
Riverhead Police Chief David Hegermiller has several concerns about the new law, but seemed relieved that cash bail can still be used for violent felony offenses. “If we know we’re dealing with a violent person or a dangerous person, we’re going to do everything we can to make sure there is cash bail put on that person and hopefully our hands won’t be tied in that case,” he said.
New York is the third state to pass cash bail reform after California and Alaska abolished the system in 2018.
Both Mr. Palumbo and Ms. Hulse agree with other aspects of the legislation.
Along with new measures in place to ensure a defendant’s right to a speedy trial, the laws set new deadlines on criminal discovery that will require prosecutors to share evidence against criminal defendants within 15 days of their arraignment. “That’s good, because my objective is always to move the case along as expeditiously as possible,” Ms. Hulse said. “You certainly don’t want anyone languishing in custody … You want justice to be served, not some kind of surprise.”
Currently, there is no deadline for evidence being shared with the defense, which reform advocates say has led to “trial by ambush,” where defendants accept deals or go to trial without knowing what evidence has been brought against them.
“Prosecutors were withholding material. That’s not fair play,” Mr. Palumbo said.
The new law grants defendants access to grand jury statements, witnesses statements, tapes and recordings and other types of evidence.
The new laws take effect in January 2020.
Additional legislation passed as part of the governor’s budget package could limit what “booking information,” including booking photographs, colloquially known as mugshots, can be released to the public and media.
It was passed as a reform to the state’s Freedom of Information Law and gives local law enforcement agencies the ability to withhold the photographs “unless public release of such information will serve a specific law enforcement purpose and disclosure is not precluded by any state or federal laws.”
Supporters cited invasion of privacy and possibility of extortion as reasons behind the measure. In his 2018 State of the State address, Gov. Andrew Cuomo referenced websites that publish mugshots and booking information online and often make people pay fees to have them taken down.
In a memo issued before the final budget was adopted, the New York Civil Liberties Union acknowledged that arrest photos online can affect one’s personal life, job prospects and other opportunities, but also criticized the measure for sweeping data important for accountability into secrecy.
The Suffolk County Police Department is no longer issuing mugshots with press releases, a spokesperson for the department confirmed Monday. The state police are also not releasing photographs.
According to a spokesperson for the Suffolk County Sheriff’s office, they are awaiting the opinion of a county attorney on the legislation and amend policy based on that opinion. In the meantime, requests for booking photographs are being reviewed on a case-by-case basis, the spokesperson said.
Chief Hegermiller said Tuesday that the department has already stopped releasing mugshots. “If you were arrested and then proved innocent, and your photo gets sealed … does it ever really get sealed? To me, it’s always out there. You’re innocent until proven guilty,” he said.
He added that if releasing the photo would serve a “legitimate law enforcement purpose,” he may make exceptions, such as if someone is a danger to the public. “Or if there’s a horrific crime, releasing the photo might have other victims come forward,” he said.