Opinion: Cuomo is exploiting a pandemic to roll back bail reform

March 30, 2020 The Legal Aid Society, Brooklyn Trial Office

Gov. Andrew Cuomo attributed the state's progress to its statewide mask mandate and cautious approach to reopening. Photo: Caroline Ourso/Brooklyn Eagle

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By Zamir Ben-Dan, Michael Pate, Erin Bannister, Alexandra Smith and Nora Carroll

As public defenders in New York City, we recognize that it was a courageous act for New York politicians to have passed bail reform last year. They stood tall in the face of incessant fear mongering and meaningfully committed to establishing a fairer judicial system for all. But in the face of relentless criticism from prosecutors, police, Republican lawmakers and the mainstream media, many of the same politicians who exhibited such courage last year have bowed to the pressure and now seek to do what is popular among law enforcement instead of what is right.

Bail reform is now the law of the land and the reduced reliance on monetary bail that it has brought about is a huge step in the direction of fairness in a criminal legal system that has perpetuated inequality for too long. The Governor’s attempt to slip bail reform rollbacks into the budget bill at a time of an unprecedented national crisis is not only fundamentally anti-democratic, it is also disingenuous

At a time when the state and indeed the nation has been gripped by the coronavirus and occupied with the turbulence it has brought, Cuomo has been quietly exerting his power, which has been greatly expanded for purposes of dealing with the virus, to force a rollback of bail reform. That he has been working on a policy that would increase jail populations at a time when jails and prisons across the state have been laboring intensely to reduce their populations amounts to cruel irony.

Cuomo has vowed to bring changes to the new laws through the budget and seeks to have the budget passed imminently, even when many lawmakers themselves are not in a position to give any legislative proposal the consideration it deserves. Indeed, as reported by The Intercept: “Several legislators have already been diagnosed with coronavirus infections, and the statehouse has been evacuated, with legislators sent home to shelter in place, unable to meet or debate.”

Common sense, human decency and fundamental notions of fairness would all dictate that any legislative action not related to the coronavirus be postponed until Albany is functioning at full capacity. Even Senate Minority Leader John Flanagan, who is steadfastly opposed to the bail reforms, noted how “undemocratic” it was for Cuomo to try and force a budget during a pandemic that has rendered several lawmakers unavailable.

But Cuomo is determined to do things his way. It is not enough for him to bow to the law enforcement lobby; he is resolved to force the state government to bow as well, in sleazy fashion at the most inappropriate of times, while hiding behind the curtains the coronavirus incidentially provided him.

History cannot and will not be kind to these lawmakers if they sneak bail reform rollbacks into the budget without giving this vital reform a chance to work. If the Governor accomplishes his goal, he will have axed a hard-won compromise that has already moved this state closer to racial and social justice.

The law that was passed was the product of a democratic process that took place in public — the reforms were hotly debated and a compromise resulted. Governor Cuomo’s underhandedness is highlighted by the simple fact that he will not release the text of the intended changes. Instead, he is seeking to slip these rollbacks, like a cocktail roofie, into the budget bill. He needs to be reminded that he is not the king of New York.

Upon the passage of bail reform legislation, millions of New Yorkers thought that a new day was coming, a day when the administration of criminal justice would be based less on race and income status and more on the merits of the case. To exploit the coronavirus panic to silently kill this reform is not only unconscionable; it is inhumane.

Zamir Ben-Dan, Michael Pate, Erin Bannister, Alexandra Smith and Nora Carroll are attorneys with The Legal Aid Society’s Criminal Defense Practice, Brooklyn Trial Office.