Bail Reform Was Just The Beginning Of What Democrats Were Elected To Do
In November 2018, Democrats won control of the state Senate in New York. And they did so with authority. Vivian Wang of the New York Times reported after the election: “Democrats had needed to flip only one seat to erase the Republicans’ razor-thin majority. They blew past that number, unseating five incumbents and winning three open seats.” Democrats would hold 40 seats and Republicans 23. It was only the third time in 50 years that the party would control that chamber and, by extension, state government given their control of the Assembly and the governor’s office.
It was also more than a simple numerical victory. In 2012, when Democrats had won what looked like a majority in the Senate, a group that called itself the Independent Democratic Conference (IDC) decided to caucus with Republicans, leaving power in Republican hands. In the 2018 Democratic primaries, progressive challengers beat six of the eight IDC members, including their leader, Jeff Klein from the Bronx. The six challengers were among a wave of progressive candidates elected to the Senate in 2018, proof, the Times described, “of the energy in the party’s progressive wing.” The election victories also came despite attempts by Senate Republicans to win voters to their side by highlighting Democratic efforts at criminal justice reform.
What would Democrats do with the power that voters, including progressives, had given them? After decades of Republican and Democratic collaboration nationwide on mass incarceration, there was hope that in this moment of unprecedented activism, New York Democrats would begin to undo systemic harms. It was more than a hope; it was a demand.
Shortly after the election, I wrote in the Nov. 20, 2018, edition of the Daily Appeal: “In the two weeks since the election, groups have begun calling for legislative reforms that will reverse the tough-on-crime policies that created a bloated and inhumane criminal legal system and have fed a terrifying federal deportation machinery. The list is long, a reflection of the many years of Republican control in the Senate when little far-reaching legislation was possible.
Immediately after the election, the heads of five of New York City’s public defender offices sent a letter to Governor Andrew Cuomo, Assembly Speaker Carl Heastie and Andrea Stewart-Cousins, who would soon take office as Senate majority leader. There was much work to be done, and there was little time to waste.
“Impacted communities and the greater public—your constituents—recognize the profound injustices that Albany has permitted to exist for decades,” they wrote, “while other states have taken action to help fix the problems.” On some issues, New York was far behind states like Texas, as the Times editorial board pointed out.
During last year’s session, lawmakers and the governor agreed on laws to address matters including in the pretrial system, specifically speedy trial, bail, and discovery. An important law, spearheaded by domestic violence survivors, offered survivors who are in prison a chance to explain the role their victimization played in the crimes that led to their sentences. These, along with important laws regarding immigration, housing, and voting, were all necessary and urgent. But they were far from the only issues that needed immediate attention. Days before the end of the session, The City reported: “Proposals to limit the use of solitary confinement, ease the release of elderly prisoners and boost pay for labor behind bars are all coming down to the final days of the Assembly and Senate calendars without a clear path to becoming law.” As law professor Steven Zeidman wrote in the Daily News, once the session concluded with no action on any of those issues, “it is impossible to ignore a cruel and cowardly omission: the absence of any laws aimed at restoring a measure of dignity, decency and hope to the most vulnerable and ignored among us, the 50,000 people in New York State’s prisons.” New York also failed to enact marijuana legalization, which was passed in Illinois last year and went into effect this year.
On Jan. 1, the Brooklyn Eagle flagged 15 criminal justice matters awaiting action in this year’s legislative session. These include measures to give aging, low-risk people a chance to be considered for release from prison, a bill to end solitary confinement beyond 15 days that had the support of a majority of the Senate and Assembly but was never brought to a vote last year, bills to restore voting rights for incarcerated people and people on parole (as is the case in Maine, Vermont, and Puerto Rico), and a bill to restore the right to serve on a jury to people with felony convictions who have completed prison sentences and terms of parole supervision (a similar law went into effect in California this year). There are also measures to make policing more transparent and accountable, including a bill to require the NYPD to erase a “rogue” database containing the DNA information of more than 80,000 people, including many who were never charged with an offense.
People whose lives have been harmed by the criminal legal system, people who have lost loved ones to prison, and countless advocates have been in Albany since this year’s legislative session began to make clear to lawmakers the scale of support for criminal justice measures.
Despite the urgent work to be done, much of the news, in Albany and elsewhere, has been driven by the agenda of those who opposed last year’s reforms and who blocked reform for decades before. Police officials and other opponents of bail and discovery reform have successfully dominated the headlines since the year began. They blame changes in the law for everything, including a purported “spike” in crime and even a witness’s murder, undeterred by the lack of meaningful evidence or even evidence to the contrary. The media has, in many instances, treated mere allegations from reform opponents as substance for news coverage.
Senate Democrats, meanwhile, have signaled a willingness to retreat, pointing to the opposition as a reason to reconsider reforms that have been in effect for mere weeks and replace them with policies that were already roundly rejected. Assembly Democrats have, admirably, refused to go along with them.
A month ago, when the recent reforms had barely been in effect but a fearmongering campaign was already well underway, Mara Gay of the New York Times editorial board assailed Democrats who had “preened and crowed, congratulating themselves as progressive champions,” after the accomplishments of last year’s legislative session but were already, two weeks into the law being in effect, “buckling, crumpling in the face of an ugly campaign to undermine the bail law by forces long opposed to reform.”
She continued: “Democrats should grow a spine, stand up for the law and reassure the public that they are at no increased danger.”
The work at hand for New York’s Democrats, who rode a wave of progressive activism to win power, is twofold. They must defend the steps they have taken to address some of the most obvious injustices in our legal system. And they should recommit to the pressing work that still needs to be done.
Back in November 2018, at a rally after the election, Kassandra Frederique of the Drug Policy Alliance expressed the desire for “real change” that would disrupt the status quo. “We need to tear this whole system down,” Frederique said. “That happens with courage. That happens with fortitude. It happens with us.”