Jesse Mckinley and Ashley Southall

Since his death, the movement to abolish cash bail has grown stronger, especially among the state’s urban politicians. On Friday, leaders in the state Legislature were poised to move forward with a plan to eliminate cash bail for most misdemeanors and nonviolent crimes while keeping monetary requirements or other conditions for violent felonies.

The tentative deal would draw New York a step closer to a eliminating cash bail altogether, as California did last year. New Jersey has also all but eliminated cash bail, while New Mexico has minimized its use.

Details still were being negotiated as part of the state budget, which is due Monday, but legislative leaders seemed confident they would pass major changes to the bail law, as well as measures to ensure speedy trials for the state’s enormous incarcerated population and to improve the handing over of evidence to defendants.

“Criminal justice reform is in an excellent place,” Carl Heastie, D-Bronx, the speaker of the Assembly, said Friday. He added that while the changes “didn’t go as far as we had liked, we will continue to work on that,” and estimated that about 85 percent of people arrested in the state would now be looking at a “cashless bail system.”

Sen. Michael Gianaris, D-Queens, who sponsored one of the bail-change proposals, said, “We are on the precipice of dramatic change that will bring justice to the vast majority of people incarcerated without a conviction.”

In a news conference late Friday, Gov. Andrew Cuomo — who had pledged last year to “end the cash bail system once and for all” — confirmed that there was a framework for a deal, but said details of how to treat people charged with violent felonies were being worked out. “That’s the point of contention,” he said.

The move to sharply curtail the use of cash bail, in many ways, was the long-awaited response to the case of Browder, who was only 16 in 2010 when he was arrested on charges he stole a backpack in the Bronx. Unable to pay his bail, he spent three years in jail, two of them in solitary confinement, as his trial date was repeatedly postponed.

The charges were finally dropped in 2013, after prosecutors could not find the person who claimed to have been robbed. Browder had trouble adjusting to freedom and hanged himself in 2015.

For many left-leaning politicians, he is a symbol of the problems inherent in the bail system, which they argue discriminates against the poor.

When Democrats seized control of the state Legislature last fall, the party finally appeared poised to stop the use of cash deposits or bonds to ensure people return to court.

But the proposal ran into unexpected resistance from Long Island Democrats, who are dealing with a wave of MS-13 gang violence, as well as from Democratic district attorneys, who wanted strong assurances that people who pose a danger to others would not be released.

At the same time, more liberal members of the Legislature chafed at proposals that judges be given permission to hold defendants on the basis of subjective standards like “dangerousness” or “risk.” Neither of those factors was a part of the framework worked out Friday, according to two people close to the negotiations who requested anonymity because the deal had not been finalized.

Assemblywoman Latrice Walker, D-Brooklyn, who has sponsored a bill to change bail, said the proposed legislation would also encourage judges to “use the least-restrictive measure possible in order to ensure a person returns to court.”

“While I know that we have not gone as far as many folks may have liked us to go, it’s groundbreaking,” she added.

The deal would eliminate bail for all misdemeanors, except those involving sexual misbehavior, and for nonviolent felonies, second-degree robbery and second-degree burglary, Walker said. Many low-level offenses also would be downgraded to desk-appearance tickets, meaning defendants would not be arrested before they appeared before a judge, she said.

Democratic gains in elections last fall swept away a Republican majority in the Senate that for decades had bottled up efforts to alter the bail law. This year, supporters of abolishing cash bail expected swift passage of a bill, particularly considering Cuomo and the legislative leaders’ support.

But New York politics are never easy; the interests of New York City lawmakers often conflict with suburban and upstate priorities, even within the same party. And moderate members of the new Democratic majority in the Senate had been urging caution on eliminating cash bail without safeguards to keep dangerous criminals in jail.

That reticence was particularly acute in suburban Long Island, where the atrocities committed by Salvadoran group MS-13 was a Republican talking point last fall.

Many of the “Long Island Six” — as the six Democrat senators in Nassau and Suffolk Counties are known — are also anticipating spirited re-election campaigns next year, having narrowly won their races in 2018. They are already facing headwinds because of the flurry of victories for liberal Democrats — including codifying abortion rights and a recent agreement on congestion pricing — that threaten to alienate some conservative and suburban voters.

The tentative deal closely tracks the position of the state District Attorneys Association, which had endorsed ending bail for most misdemeanors and some nonviolent felonies.

Six Democratic prosecutors from the city and its suburbs — including liberals like Cyrus R. Vance Jr. in Manhattan, Eric Gonzalez in Brooklyn and Darcel D. Clark in the Bronx — wrote an opinion piece in The Daily News this week in support of ending cash bail, but only if the law was changed so that judges could order people detained “who pose a physical safety threat to others.”

During negotiations, disagreements arose over which crimes were serious enough to warrant letting a prosecutor request that a defendant be held in jail and whether judges could consider the threat some pose to the public in making bail decisions. Liberal members of the Legislature seemed intent on making the risk of flight the only consideration for bail, a goal they seemingly fell short of.

Cash bail has roots in Anglo-Saxon law and has evolved to mean the set of conditions that judges impose on people who have been arrested to make sure they return to court until their cases are resolved. In New York, judges routinely give defendants just two options: cash and insurance bonds, and this, critics say, has created a two-tiered system of justice.

Because people free on bail are more likely to prevail at trial, the system gives wealthier defendants an enormous advantage over those who are poor, and disproportionately affects black and Latino people. Public defenders say impoverished defendants often plead guilty to reduced charges simply to end incarceration, even as they maintain their innocence.

Supporters of ending cash bail had recent data on their side, including a new report that showed judges in New York City have already cut the use of cash bail drastically over the last three decades without seeing a rise in the number of defendants who do not return to court.

City judges released about three-quarters of the defendants who appeared before them in 2017 without bail, and 86 percent of those people showed up for their court dates, the same percentage as three decades ago, when far more people were held on bail, and well above the national average, a report by the New York City Criminal Justice Agency showed.

Cuomo has repeatedly said he would not sign a budget without changes to the criminal justice system, and as negotiations pushed toward Monday’s budget deadline, the Senate majority leader, Andrea Stewart-Cousins, D-Westchester County, reiterated that she and fellow Democrats in her chamber wanted to “make sure that we’re not criminalizing poverty, and that there would never, ever, ever be another instance of a Kalief Browder.”

This article originally appeared in <a href="https://www.nytimes.com/2019/03/29/nyregion/kalief-browder-cash-bail-reform.html" id="e8e7559a-92dc-335d-a432-334f145ae57b">The New York Times</a>.

Kalief Browder's Suicide Inspired a Push to End Cash Bail. Now Lawmakers Have a Deal.

NEW YORK — For many in New York, the inequities in the cash bail system were crystallized when a Bronx teenager named Kalief Browder spent three years on Rikers Island because his family could not raise $3,000, only to have a robbery charge dropped for lack of evidence. He later took his own life.

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Jesse Mckinley and Ashley Southall

Articles written by the author

Kalief Browder's Suicide Inspired a Push to End Cash Bail. Now Lawmakers Have a Deal.