Prison bars. Photo: Shutterstock.com

Two measures were introduced Thursday by Republican lawmakers in New York to trim back new laws on cash bail by qualifying more charges for bail and allowing judges to decide if a defendant should be incarcerated before trial based on their perceived threat to public safety.

The pair of bills was a response by Republicans in the State Senate to the state's new laws on cash bail, which will allow most defendants to be released before trial starting next year.

The organization representing New York District Attorneys is backing the measure.

State Sens. Sue Serino, R-Dutchess, and Patrick Gallivan, R-Erie, announcing the legislation in Albany, argued that the new laws, which take effect in January, pose a public safety risk.

"Changes to the criminal justice system were, and are, warranted. But they need to be done smartly," Gallivan said. "You need to be looking at evidence You need to consult with professionals. You obviously need to keep up with the times, and that's our job as lawmakers."

Democrats, who took control of the state Legislature for the first time this year in nearly a decade, pushed through the new bail reform law as part of a larger package of criminal justice reforms. Lawmakers also enacted changes to criminal discovery and the right to a speedy trial.

The new law will allow most defendants charged with low-level or nonviolent crimes to be released after their arraignment without having to post bail. It's intended to prevent cases where defendants are kept in jail prior to trial, which can sometimes take months, or even years.

The Republican lawmakers said Thursday that they're not opposed to eliminating cash bail for some crimes, but that the law approved earlier this year went too far.

"In their rush to reform, they failed to consider the very real danger that these sweeping changes would have on communities as a result of the failure to grant judges the ability to even consider the safety risk a person poses to others," Serino said. "That's not justice."

They pointed to a list of charges that are no longer eligible for bail in New York, meaning defendants will remain out of jail while they await trial. Among those charges are aggravated vehicular homicide, a class B felony and selling a firearm to a minor, a class C felony.

They also argued that those repeatedly charged with certain low-level crimes, like misdemeanor domestic violence, cannot be held before trial under the new law. That means, they said, those individuals could harm others after their release.

"We have a piece of legislation that, again, is looking at offenders—no consideration about what a repeat offender might do once they get an appearance ticket and go back out there," Gallivan said.

Orange County District Attorney David Hoovler, who's the current president of the District Attorneys Association of the State of New York, was at the press conference Thursday to throw his weight behind the proposals. The group opposed the new bail law as it was written.

"Every district attorney in this state wants some type of reform and wanted it done in a meaningful manner," Hoovler said. "What we got, I believe, is a hodgepodge of things that were not well thought out."

The legislation pushed by Gallivan and Serino on Thursday would seek to amend the state's new bail laws in two ways.

The first bill would allow judges in New York, when deciding if they should set bail, to consider a defendant's so-called 'dangerousness,' or threat to public safety. That factor has never been allowed as a consideration for judges in New York and still wouldn't be under the new law.

Gallivan, the former Erie County Sheriff, said the legislation doesn't include a specific definition of what would classify a defendant as dangerous. That would be entirely within the discretion of the judge, he said.

"We've placed our trust in judges through various elections," Gallivan said. "This bill just gives them the discretion to make that decision. It allows it, it doesn't require it. It would be up to them."

Democrats in the state Legislature have resisted allowing judges to consider a defendant's so-called 'dangerousness' in the past. When lawmakers wanted to eliminate cash bail entirely this year, some wanted to allow the factor as a safety valve of sorts.

But some of the prime supporters of bail reform, like Assemblywoman Latrice Walker, D-Brooklyn, were staunchly opposed to legislation that would allow 'dangerousness.'

She, and others, argued at the time that there were certain situational factors that not all judges may consider if given the discretion to evaluate someone's threat to public safety. Certain factors, like if someone is homeless, shouldn't be included, she said.

Erin George, the civil rights campaigns director at Citizen Action of New York, an advocacy group, argued Thursday that lawmakers were right to exclude 'dangerousness' in the final bill because some factors in making that decision can be perceived as racist.

"The reason the Legislature and governor finalized and signed into law a bail law that doesn't include 'dangerousness' is because it's a racist construct that will be used to perpetuate injustice against legally innocent people," George said.

"That just perpetuates the system of geographic injustice that has persisted in New York for decades and generations," she continued.

The second bill would require that charges under the aggravated family offense statute, which include domestic violence and sex crimes, be eligible for bail and pretrial incarceration. Some of the charges under that statute, like misdemeanor domestic violence, will no longer be bailable.

Language for either piece of legislation was not immediately available Thursday afternoon. It wasn't immediately clear which domestic violence charges and sex crimes would be eligible for bail under the second bill.

A spokesman for Gov. Andrew Cuomo, who negotiated the new bail law with Democrats in the Legislature said the comments from Republicans on Thursday amounted to "fearmongering," and pointed to similar measures that have already been enacted in New Jersey.

"Republican Governor Chis Christie passed essentially the same bail reform laws years ago in New Jersey and their state reports have shown that overall crime has decreased with no statistically significant changes regarding re-offenses or court appearances," said Jason Conwall, the Cuomo spokesman.

"Politicians taking cues from Trump's cheap fearmongering should knock it off and focus on the facts," he said.

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