New York

Some New York prosecutors stop asking for bail in minor cases

'This was a complete paradigm shift'
Cyrus Vance Jr., Manhattan district attorney, during a news conference in New York on Dec. 4, 2017.
Cyrus Vance Jr., Manhattan district attorney, during a news conference in New York on Dec. 4, 2017.

NEW YORK — As the New York state Legislature takes up a bill to eliminate cash bail for many crimes, the two biggest district attorney offices in New York City have already taken steps in that direction, ordering prosecutors not to request bail in most misdemeanor cases.

The Manhattan district attorney, Cyrus R. Vance Jr., sent a memo to his assistants on Monday night directing them not to request bail for defendants accused of nonviolent misdemeanors, like shoplifting, marijuana possession and trespassing. They still may request bail in violent cases with vulnerable victims, such as domestic assaults, sex crimes and child abuse.

In Brooklyn, District Attorney Eric Gonzalez issued a similar directive last April, reversing the long-standing practice of automatically requesting bail in the majority of cases, even those where prosecutors intended to seek a sentence of less a month in jail.

“This was a complete paradigm shift for prosecutors,” he said. “What we are looking to do is have a system where people who pose no public safety threats are not in jail.”

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The new bail policies from the prosecutors in charge of two of the largest district attorney offices in the country reflects a growing consensus among urban law-enforcement officials that the use of monetary bail discriminates against poor people, in big cities, many of them are black or Hispanic.

Public defenders have long argued the cash bail system coerces impoverished people to plead guilty even if they believe they are innocent. That is especially true in low-level misdemeanor cases, in which people would have to stay in jail to fight the charges, but pleading guilty would mean a shorter stay in jail, a fine or community service.

Vance said that continuing to rely on cash bail for low-level offenses was “fundamentally unfair and does not make us safer.” He said his assistants would not seek bail in cases where they would ask for a penalty of less than 30 days in jail. “We have been trying to reduce the inequality and the appearance of inequality in our justice system,” Vance said in an interview.

The policy change in Brooklyn and Manhattan is another step in the city’s effort to reduce the jail population at Rikers Island, which has now fallen to below 10,000. Mayor Bill de Blasio has made it a goal to eventually close the nine-jail complex, where a culture of violence persists. Since March, his administration has worked with the prosecutors, who are state officials, to divert into supervised release programs about 6,900 defendants who in the past would have been detained before trial.

Last week, Gov. Andrew M. Cuomo called on the Legislature to pass a bill eliminating bail for misdemeanors and nonviolent felonies, saying monetary bail had created a “two-tiered system” that treated rich and poor unequally. A similar effort to revamp a state bail law is expected to debated by the California legislature this year.

New Jersey has largely eliminated cash bail, mirroring the system used in federal courts and placing the state at the forefront of a national bail-reform movement. For a year now, judges in New Jersey have been deciding whether to hold people before trial based on the risk of flight and the risk a defendant might pose to others if released.

Vance and Gonzales both said they would like to see the New York state Legislature pass a similar statute. In New York, judges are only allowed to weigh the risk a defendant will not show up in court, and may not take public safety into account in setting bail.

The Bronx district attorney, Darcel D. Clark, also voiced support on Tuesday for changing the bail laws to limit the use of monetary bail, especially in misdemeanor cases. “If we are not asking for jail, then we should not be asking for bail,” she said at a Citizens Crime Commission breakfast. “For my ADAs, the default is no bail, unless there is a reason for it.”

It remains unclear how many defendants the new policies will affect over time. Both Manhattan and Brooklyn guidelines include a long list of exceptions. Bail is still going to be requested, for instance, for people with violent felony convictions, for sex offenders or for people accused of domestic violence.

At present, Vance said, judges only set bail for about 15 percent of the 54,000 people arraigned in Criminal Court in Manhattan last year. He expects that proportion to shrink substantially. In Brooklyn, about 9 percent of 55,000 people arraigned on misdemeanor charges are being asked to post bail, down from about 30 percent two years ago, Gonzalez said.

Tina Luongo, the attorney-in-charge of The Legal Aid Society’s criminal defense practice, said the policy changes were welcome to public defenders, but she added that only the Legislature could revamp the state’s bail system in a meaningful way.

“Closing Rikers Island, reducing mass incarceration and saving lives will require more than long-overdue, piecemeal changes,” she said. “This is a step in the right direction, but we need Albany to act now on a statewide basis.”

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