Gov. Andrew Cuomo. Photo: Bloomberg

At the year's start, criminal justice reform advocates in New York state had reason for hope.

Gov. Andrew Cuomo, in his annual State of the State address, made several criminal justice reforms central to his agenda. Chief among them was bail reform: the elimination of cash bail for people facing misdemeanors and nonviolent felonies. The proposal was based on the argument that cash bail systems unfairly target and incarcerate the poor.

What was more, New Jersey had put into effect its own law essentially doing away with monetized bail just last year.

But by the end of March, the governor announced that he and lawmakers had arrived at a new $168.3 billion proposed budget. Inside the budget bill: some disappointment. Bail reform, and the other criminal justice reforms touted by Cuomo, were nowhere to be found.

Now, the governor's office says it may be closing the gap on bail reform and other policy issues it has been pushing, including several women's rights issues, because he and other Democrats have moved closer to owning a majority of the state Senate. It remains Cuomo's goal to get some or all of his criminal justice reforms passed before the legislative session ends in June.

Last Tuesday, the results of two special Senate elections were revealed, and Democrats had won both seats: One in Westchester County, one in the Bronx.

The Democrats now “officially” control a one-vote Senate advantage, 32 to 31. Though, in reality, it is not the case, and, in fact, any change in the ultimate balance of powers appears unlikely.

Brooklyn Democrat Simcha Felder has announced that he will continue to side with and caucus with state Republicans, as he has in years past, and he's long been fiercely independent about representing the particular interests of his Orthodox Jewish constituents. His vote alone allows the Republicans to hold onto their slim majority.

Cuomo, in turn, is moving to sway Felder. His office said that policy proposals such as bail reform, the speeding up of disclosure of evidence to defendants facing trial, and abortion law changes, hinge on Democrats controlling the Senate. But, so far, these and other proposals—introduced in January by Cuomo to “start the conversation early” about them—have failed to make it to a floor vote because Republicans have blocked them, according to the governor.

In an open letter last week, Cuomo wrote to Felder imploring him to “join the 31 other registered Democrats, so we can enact meaningful legislation.”

“Your decision on Senate leadership is now pivotal,” the governor wrote, adding, “There are issues we need to address that the Republicans in the Senate refused to act upon or even bring to the floor for a vote.”

He continued, “Not only is it a wasted opportunity to move the state forward, but by refusing to bring issues up for a vote New Yorkers don't even know where the legislators stand … I understand that you may not support all these issues but many Republicans have said they would pass these bills if they came to the floor.”

Near the letter's end, he also wrote, “Usually, an executive is warned to avoid 'interference' with the legislative branch of government …These are not usual days.”

Felder, asked by the Law Journal for comment on Cuomo's pleas and any change in his stance because of them, did not return messages.

Advocates who have been pushing bail reform in the state for years, and most pointedly since January, continue to hold out hope and apply pressure.

“Lawmakers passed up an opportunity to fix our broken bail system during the budget process, but they can and must act this session,” said Donna Lieberman, executive director of the New York Civil Liberties Union, in a statement sent to the Law Journal.

“Each and every day thousands of New Yorkers are kept in jail before they have had their day in court,” she added. “The cost is too high to wait any longer.”

For Lieberman and other proponents, the need for reform is both straightforward and tough to ignore. They point to statistics showing that cash bail is a leading driver of mass incarceration that disproportionately affects the poor and indigent.

For instance, in March the civil liberties group released a report stating that, over a five-year period, across eight New York counties examined, more than 90,000 people were held for a day or longer, and more than 45,000 were incarcerated for a week or longer, as they tried to come up with bail money.

Of those held on bail for any amount of time, 60 percent faced a misdemeanor or violation as their most serious charge, according to the NYCLU.

In addition, the NYCLU prevailed this winter in a declaratory legal action lodged in Dutchess County on behalf of a man held for months while he couldn't afford to pay his bail. Justice Maria Rosa ruled that setting cash bail on a defendant, without considering his or her ability to make such a payment, violated individuals' constitutional rights of due process and equal protection.

In the end, the core argument made by the NYCLU, other advocates and Albany Democrats is that it is unfair to lock up for weeks and months less wealthy defendants, who are often African-Americans, while similar defendants of greater means pay their bail amounts and go free. After all, none of the defendants have yet been convicted of a crime, they said.

But for critics of the reform proposals—including area district attorneys and police chiefs, bail bondsmen and even some defense-bar members—the issue is not that simple, and they oppose the reforms, at least as they have been proposed so far. Like their counterparts, they continue to speak out about the issue.

“Generally, most of the DAs throughout the state feel that the current bail statute is more than sufficient,” said Scott McNamara, the DA for Oneida County and president of the District Attorneys Association of the State of New York, in a recent interview. He also pointed out that the bail statute, as constructed currently, does allow judges to release first-time or low-level offenders on their own recognizance.

“And we've been taking a position for a long time,” he said, “that we would agree to some presumption of relief, other than bail, on misdemeanor charges, as long as we would continue to have the right, in certain circumstances, to ask for bail in those cases.”

McNamara also argued that the governor's proposal to release those accused of nonviolent offenses “is very problematic for DAs in upstate New York who spend the vast majority of their time prosecuting drug dealers who come from New York City.”

“Now we're going to release these individuals on a ROR [release on your own recognizance] and they'll go back to New York City,” he said. “Who pays to go find them and extradite them back to the upstate county?”

Similarly, he argued that “another problem in the upstate counties,” where releasing those arrested without forcing the payment of bail is less common than in New York City, is the “problem of people driving while their license is suspended—which implies they've already had a ticket and not responded.”

“What's the probability that they're going to come back to court this time?” after being released, he asked.

McNamara and his group also stated in a DAASNY news release from March that the “full ramifications of releasing thousands of people upon arrest should be carefully discussed and scrutinized to ensure the well-being of New Yorkers in all parts of our great state.”

Still, with the battle lines drawn—and with Felder's single vote appearing to be the most important lever of all—Cuomo and his Democrat allies are far from ready to give up.

“The governor has made criminal justice reform a pillar of the last eight years,” Colin Brennan, a Cuomo spokesman focused on public safety issues, told the Law Journal in an interview.

“Our commitment on bail reform has not wavered.”