Could rolling back bail reform change the plan to close Rikers?

January 8, 2020 Mary Frost

The Brooklyn Detention Complex. Photo: Paul Frangipane/Brooklyn Eagle

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Advocates for closing Rikers and opening smaller borough-based jails are beginning to fret over the push to roll back some of the provisions of the bail law reforms that went into effect on Jan. 1, saying the contentious plan was carefully crafted using population estimates that included the impact of bail reform.

A source at City Council Speaker Corey Johnson’s office told the Brooklyn Eagle there would be no way to predict what might happen to the jail plan if bail reforms are scaled back, since the calculations that went into the plan and the smaller jail model were complex. The source in Johnson’s office declined to be quoted.

Brooklyn Defender Services, which advocated for the bail reforms, cautioned that stepping back on the reforms could put the kibosh on the plan to close Rikers.

“The new bail laws increase fairness and community safety in Brooklyn,” Lisa Schreibersdorf, executive director of Brooklyn Defender Services, told the Eagle. “If they are rolled back, which we and countless others across the state would strongly oppose, the city’s commitment to close Rikers could be seriously compromised.”

Schreibersdorf also warned that giving judges more discretion to hold defendants who have not yet been convicted of a crime could backfire, causing jail populations to balloon.

“Changing the law to require judges to attempt to predict a person’s future dangerousness and jail them accordingly could likely increase rather than decrease local jail populations, in addition to reinforcing racism in our criminal legal system and undermining basic constitutional rights,” she said.

A spokesperson for Mayor Bill de Blasio, who supports bail reform but has come out in favor of tweaking the law, said that any changes will not stop the momentum on closing Rikers. The Mayor’s Office said other criminal justice reforms will keep numbers down.

“In recent years we have seen a drastic decrease in the number of people entering our corrections system — all while remaining the safest big city in America,” said B. Colby Hamilton, chief of public affairs at the Mayor’s Office of Criminal Justice. “We expect this trend to continue with the use of non-money bail options and larger reforms to our case processing and parole system.”

The mayor’s $9 billion plan to close the jail complex at Rikers by 2026 depends on the construction of new detention facilities in Brooklyn, Queens, Manhattan and the Bronx. The city initially planned to build a massive 430-foot jail in place of the Brooklyn Detention Complex on Atlantic Avenue in Boerum Hill — roughly two and a half times larger than the current 11-story jail, which closed last week.

In the face of local opposition at the sites of each of the proposed jails, de Blasio and Johnson’s offices announced smaller jails, predicated on lower jail populations due to a slate of criminal justice reform measures, including eliminating cash bail on misdemeanors and nonviolent felonies.

All four proposed jail heights plummeted by an average of 90 feet after protests, revised jail population estimates and accusations of political gamesmanship. The planned Brooklyn Detention Complex had its height cut to 295 feet. The proposed jail in Kew Gardens, Queens, was slashed to 195 feet. The council passed the plan on Oct. 17, and the Brooklyn facility was shuttered on Jan. 2.

Meanwhile, the controversial bail reforms passed in Albany took effect on Jan. 1, eliminating pretrial detention and cash bail for defendants charged with misdemeanors or nonviolent felonies.

Critics of the bail reform law say dangerous people will be released while awaiting trial, citing cases like that of Albany resident Paul Barbaritano, accused of manslaughter. Barbaritano was released on bail when the reforms took effect; his lawyers say it was a tragic accident.

Following Barbaritano’s release and other high-profile cases, Gov. Andrew Cuomo and de Blasio have also backed changes to the bail reforms.

“I think there is real agreement that the bail reform law needs to be amended,” de Blasio said Thursday. “There is a chance now for the legislature to get it right. They did some very good reforms, but there’s also things that need to be done.”

The Independent Commission on New York City Criminal Justice and Incarceration Reform, chaired by former Chief Judge of the State of New York Jonathan Lippman, argues that bail reforms are crucial and that panic over the effects is misplaced. The group, known as the Lippman Commission, is an independent body of more than two dozen experts, policymakers and advocates that authored the plans to close Rikers, create borough-based jails and reduce jail sizes.

“There’s been a lot of discussion about specifics, but anyone saying the sky is falling is wrong,” Tyler Nims, executive director of the Lippman Commission, told the Eagle. People had similar fears over the replacement of the Rockefeller drug laws and the overturning of the city’s stop-and-frisk policy, he pointed out.

Assemblymember Jo Anne Simon, who represents the area where the new Brooklyn jail will be built, also said changing the new bail laws is misguided.

“We ought to be really careful about modifying bail reform, especially since the new law has been in effect for only a week,” she said. “Our previous laws were deeply flawed, perpetuating racial bias and income bias, leaving individuals who can’t afford bail behind bars for months or even years — even though they had not been convicted of any crime. That doesn’t make our city safer and modifying the new law won’t either.”

Since the borough-based jail plan passed by the council defined the size of the facilities and limited the number of beds, it’s possible any changes to the plan would require restarting the land use process, which could take up to a year. The Department of City Planning declined to comment on that possibility.

Nims, however, isn’t worried that rolling back parts of the bail reform package will make much of a dent in the plan to build smaller jails, since there are other factors that contribute to lowering the jail population.

“There are other ways to reduce the numbers,” Nims said, such as speeding up case processing and changing policy at the district attorneys’ offices. “[Brooklyn District Attorney] Gonzalez did a tremendous job. We need a similar process in the other boroughs.”

Parole reform would also reduce the jail population, he said. “A quarter or more of the people in Rikers are there because of alleged parole violations.”

Nims supports the Less Is More Act, which would keep out of jail paroled people who are charged with a non-criminal violation that violates their parole, such as breaking curfew or getting a traffic ticket.

The Less Is More Act is sponsored by State Sen. Brian Benjamin and Assemblymember Walter Mosley and is supported by Brooklyn District Attorney Eric Gonzalez, among others. According to Benjamin’s website, more than 700 prisoners at Rikers today are in for non-criminal violations of this sort.

“I think the numbers set are ambitious but achievable. Bail reform is part of it,” Nims said. “A lot of momentum, pressure and smart policies lead to smaller, more effective justice system with fewer people incarcerated.”

Correction (Jan. 17 at 12 p.m.): An earlier version of this story misstated Brooklyn Defender Services’ stance on the jail plan. The organization did not take a stance. The story has been updated and the Eagle regrets the error.