Bail Reform Doesn’t Go Far Enough- Progressives

Justice Reforms Not Expected to Make It Out of Albany Budget Talks

Criminal justice reform advocates rally at City Hall in support of the Clean Slate Act to seal conviction records of formerly incarcerated people, May 19, 2022. | Ben Fractenberg/THE CITY

By Reuven Blau, The City

This article was originally published on Mar 31 7:12pm EDT by THE CITY

NEW YORK - A series of criminal justice reform bills — on record sealing, elder parole, and additional legal protections during police juvenile interrogations — will not be included in the upcoming state budget, according to multiple legislative insiders. 

After giving Gov. Kathy Hochul space to fend off a threat from the right during last fall’s election, progressive activists could not land her support on any of their criminal justice causes as part of the budget, despite a Democratic supermajority in the State legislature. 

“Elder parole would have saved the state hundreds of millions of dollars a year,” said Jose Saldana, director of the nonprofit Release Aging People in Prison, who noted it’s been a years-long fight for the  bill and it costs at least $200,000 a year per each elder person behind bars. “We are always disappointed,” he added, “but especially with the budget.” 

Criminal justice reformers now plan to push their legislative wish list after the budget is passed during the remainder of the Albany session, which ends in June. 

They hope the added time will bring more attention, and conversation with state legislators, for their wishlist. 

 “As a general matter, it’s more ideal for policy to be debated and negotiated through the typical legislative process, especially when there’s no funding attached,” said Jullian Harris-Calvin, director of the Greater Justice New York program at the Vera Institute of Justice, a nonprofit supporting a raft of reforms. 

Maggie Halley, a Hochul spokesperson, said the executive budget makes “transformative investments to make New York more affordable, more livable and safer.”

Bailing Out

If anything, Hochul wants to roll back some earlier reforms.

The state budget negotiations are reportedly being held up by Hochul’s push to further water down bail regulations initially changed in 2019. Hochul wants to give judges more leeway to keep people locked up by lifting a requirement that they use only the “least restrictive means” to ensure a defendant shows up to trial.

Criminal justice reformers have strenuously pushed back, arguing that any changes will result in more Black and brown people disproportionately being locked up in dangerous jails for months, and sometimes, even years. 

“Judges already have wide discretion to set bail or remand, and eliminating the ‘least restrictive’ standard in existing statute erodes the purpose of bail and would only condemn more of our Black and Latinx clients to suffer pretrial incarceration at Rikers Island,” said a statement from the Legal Aid Society, the city’s largest public defender organization. 

No New Hope

Some of the other proposed changes to the criminal justice system have been banging around Albany for several years. 

That includes the so-called Elder Parole measure, which would automatically make anyone 55 or older who has served at least 15 years in prison eligible for a parole hearing. 

A version of the bill was first introduced in May 2018. 

Meanwhile, the share of people in state prison who are at least 50 years old was 24% of the entire population behind bars as of March 2021, according to a report by state Comptroller Thomas DiNapoli. By contrast, that population was just 12% in 2008, the report said. 

State prison “return-to-custody” data has shown that older prisoners are much less likely to commit new crimes. Looking at the period from 1985 to 2015, the Department of Corrections and Community Supervision found, f

Inmate advocates point to studies that say people 55 and older have extremely low recidivism rates. | Shutterstock

Younger people in prison were much more likely to return, according to the state data. 

“Over half, 54%, of the individuals released in 2015 who were under 21 years old returned, while 42% of the individuals 21 years of age or older returned,” according to the report.  

“There’s no real legitimate argument that releasing older New Yorkers, many of whom are in dire medical straits, is bad for public safety,” said Harris-Calvin from the Vera Institute. 

One state Assembly member, Jeffery Dinowitz (D-The Bronx), last year said he was worried the measure would set free serious offenders. 

“The fact is that anyone who receives a prison sentence long enough to qualify for elder parole has been convicted of an extremely serious crime,” he told the Riverdale Press. “Many of my colleagues — including myself — have very serious concerns that the elder parole bill does not address the type of crime in any way.” 

Supporters of the legislation point out that the incarcerated people would need to be approved by a parole board, which is unlikely to release people convicted of multiple killings or other high-profile crimes — or if the person shows no signs of remorse and rehabilitation. 

Last year, Republicans were joined in their opposition to elder parole by some moderate Democrats, whose party controlled both houses of the state Legislature with a veto-proof supermajority.

Try, and Try Again

Some pending criminal justice bills don’t have much bearing on the budget and will have to wait regardless. That’s the case with a proposal to ban cops from interrogating minors without counsel, first introduced in 2020.

While police must read everyone their Miranda rights — letting a detainee know they can remain silent, ask for a lawyer and not incriminate themselves — many young people can’t understand what that actually means, according to defense lawyers who represent juvenile clients.

Marty Feinman, who until recently ran the Legal Aid Society’s juvenile practice, handled scores of cases involving underage confessions and is still working with the nonprofit public defender organization on what he considers an urgent push.

The Crossroads Juvenile Center in Brownsville, Brooklyn, March 20, 2020. | Ben Fractenberg/THE CITY

“My understanding is that something like our bill would not necessarily be included in these budget discussions,” he said, noting the projected cost of between $1 million to $3 million would not be a high enough amount to require a budget adjustment.

“The Fifth Amendment for kids under 18 is being rendered an absolute myth,” Feinman said. “Their rights are being deprived and it’s a horrible miscarriage of justice.” 

That money would go towards the court system making sure that a lawyer is available to any underage child picked up by the cops — perhaps through a 24/7 hotline staffed by lawyers in remote areas, according to Feinman.

Another bill that remains in limbo is the Clean Slate Act to “make record sealing much more accessible by automating the process,” according to the Brennan Center for Justice, which supports the legislation. 

It would seal past criminal records up to 1.4 million people, according to one estimate by the Paper Prisons Initiative of Santa Clara University. That could give renewed access to more job and housing opportunities for anyone affected

“A criminal record should not mean a lifetime of blocked opportunity,” said Eli Northrup, policy director in the Criminal Defense Practice at The Bronx Defenders. “Clean Slate cannot wait.”

Holding the Line

The likely budget is not all bad news for criminal justice reformers. 

They are pleased the proposal currently being discussed doesn’t not include any rollback to the discovery reform legislation passed in 2019.

“We don’t think she’s gonna make any changes to discovery just because the issue is so esoteric and complicated,” said one official who works for a public defender organization who asked to speak anonymously because the budget has not been finalized. “Even if they made changes it would be tough for regular New Yorkers to understand the impact.”

The proposed budget also does not involve any changes to the Raise the Age measure, which boosted the age of criminal responsibility from 16 to 18.  

Gov. Kathy Hochul at the State of the State address in Albany. Jan. 10, 2023. | Mike Groll/Office of Governor Kathy Hochul

Mayor Eric Adams has repeatedly called for changing that law, passed in 2018. 

“I want us to look at keeping violent juveniles in criminal court,” he told reporters last summer. 

Supporters of the measure note that minors’ brains are still developing and thus it is unfair, and damaging in the long term, to treat them as adults. New York State was one of the last in the country to change the law on how it treats 16- and 17-year-olds. 

As for the “discovery” reforms, Albany lawmakers required prosecutors starting in 2020 to share all case information and evidence with defense teams well before a trial begins.

Public defenders and progressive lawmakers had pushed for those legal changes  to combat an oft-used prosecutorial practice of holding back on disclosures until the eve of trial, forcing defendants to quickly weigh whether they should fight their cases or take plea deals in the dark.

Some prosecutors had complained the requirements are overbroad and unwieldy. 

But disappointment remains widespread among advocates that Hochul herself did not include any criminal justice reforms in her budget proposal, which is typically used as a roadmap for the final budget.  

“What’s clear about the governor’s budget is that she is more interested in jailing Black, brown, and immigrant New Yorkers than she is making investments that will create true community safety,” said Northrup.

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