From Bail to Jail: Cuomo vs. Nixon on Criminal Justice Policy

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As the September 13 Democratic primary approaches, City Limits is comparing the two gubernatorial candidates on the issues. Below is a brief examination of their positions on housing policy. Other articles in this series cover education, housing and transit.

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When it comes to criminal justice issues, both Gov. Andrew Cuomo and Cynthia Nixon agree that the moment is ripe for reform. They both support closing Rikers on an expedited timeline, raising the age of criminal responsibility and bail reform. The question is, how far can or should we go?

On several of the issues, Nixon proposes taking the reforms further than Cuomo’s more measured steps, but experts say her success would largely rely on the larger political climate and the makeup of the legislature. Here’s where the two candidates stand on several key points:

Bail

Cuomo this year announced his support for the elimination of cash bail for those facing misdemeanors and nonviolent felonies, but the provision was not in the latest budget and, without a Democratic majority in the state Senate, the plan fizzled. His proposal includes a provision that would allow certain defendants to be jailed for five days until a hearing is held to determine whether they should be let out with supervision.

Cuomo also recently introduced an initiative to require stricter state oversight over the bail industry.

Nixon says she would abolish the use of all cash bail and supports “community oriented assistance” to help people make their court dates. She opposes restrictive supervision and would support legislation prohibiting the for-profit commercial bail bonds industry from operating in New York.

New York has one legal system for the poor and people of color, and another for wealthy white men. It’s time to abolish cash bail. It’s time to end discriminatory policing. And it’s time to invest in #SchoolsNotJails. Demand real criminal justice reform: https://t.co/h7nCBnEksq. pic.twitter.com/yLU1lQTP4e

— Cynthia Nixon (@CynthiaNixon) June 19, 2018

Jeanne Zaino, professor of political science at Iona College, says either candidates’ bail-reform proposal would likely get at least a serious hearing, but “It’s going to hinge on Democrats controlling the Senate.”

Eugene O’Donnell, a professor at John Jay College, says that while he thinks some version of bail reform may be on the horizon, a primary campaign is a poor venue for a realistic conversation about the risks of reform and how the system will react if those risks—like the inevitable threat that someone out on pre-trial release commits a heinous crime—are realized.

If bail and parole reform are successful, he says, “Somebody’s gonna get killed, and we have to have that conversation.” He believes it would be better had by a commission.

Juveniles

In April 2017, New York raised the age of criminal responsibility from 16 to 18, a change the governor pushed for. Youth accused of any category of crime will no longer be detained in adult prisons or jails, including Rikers Island, but will instead be placed in specialized juvenile detention facilities. Sixteen and 17 year olds charged with felonies will still be seen in the Youth Part of Criminal Court.

Nixon would expand the “Raise the Age” so that all youth under 18, including those charged with felonies, are sent to family court for all offenses. She ultimately wants to increase the age of adult criminal responsibility to 21.

“It’s something that’s going to be very attractive to Democratic primary voters,” says Zaino, but she thinks it may be “a bridge too far” for Republicans and also some Democrats in the legislature. “I think that that’s going to be a very difficult pill for people to swallow,” she says, noting that it would only take Republicans publicizing a few cases of serious crimes committed by people under the age limit to seriously alter the conversation. In particular, she sees raising the age further as having trouble getting through the Senate.

Courts

In the state’s 2017-2018 budget signed by Cuomo, $250 million was allocated for reimbursement to counties for defense services for indigent parties and bringing those services up to certain standards, though he had previously vetoed a bill in January 2017 that would have assumed the full cost of the effort. The 2018 budget, however, includes funding for 100 percent of the costs necessary to extend the reforms to all New York counties.

Under Cuomo, New York State also ended the Rockefeller-era drug laws that that prevented judges to use discretion in sentencing certain cases.

Nixon and Cuomo both propose changes to speed the time defendants spend awaiting trials and they both call for discovery reform. Nixon specifically calls for mandatory disclosure of all discoverable material prior to a plea.

Policing

Under Cuomo, New York appointed a special prosecutor to handle police-involved killings of unarmed civilians.

Nixon would push legislation to enhance the state’s Special Prosecutions Unit. Her law would provide funding to the AG to conduct investigations into racial patterns of law enforcement and abuse, establish metrics monitored by the AG’s office regarding stops and low-level arrests and require the AG to investigate all instances in which law enforcement officers use deadly physical force, regardless of whether the civilian is alleged to have been armed and even if no one died.

Under the current law, created by Cuomo’s 2015 executive order, the attorney general only has purview over deaths of unarmed civilians caused by officers and a special prosecutor can only review cases when there is a question over whether the civilian was armed and dangerous at the time death.

Nixon supports several efforts aimed at providing greater transparency in policing. She supports repealing Section 50-a of state civil rights law to make information about police misconduct and discipline publicly available and would push for a policy that would require law enforcement to release the names of officers involved in shootings or killings of civilians within 48 hours. Police departments would also need to make public facts surrounding the incident, along with full unedited video and other information within a similar timeframe.

Nixon says she would secure amendments to state law that would require public disclosure regarding arrests and stops, and pass legislation to end arrests for low-level, ticketable offenses.

Cuomo signed legislation as part of the FY 2018 Budget requiring law enforcement to video-record custodial interrogations of those accused of serious crimes. The goal is to help prevent wrongful convictions and protect law enforcement from false allegations.

Cuomo also got behind legislation that allows photo identifications to be made by witnesses at trial.

Reforms that target police, such as Nixon’s proposals for greater transparency may be politically viable especially on a state level, says O’Donnell, but they could also further erode recruitment and retention issues within the NYPD. “There’s 100 reasons for not being a New York City cop now and they want to add 50 more,” he says.

Zaino thinks there’s an increasing amount of political will for increased transparency in policing, but that Nixon would have to be careful balancing that with protecting police to get ahead of a debate over guaranteeing officers’ safety.
In a related policy area, Cuomo has also called for banning all asset seizures unless an arrest is made.

Inmates

Both Nixon and Cuomo support closing Rikers on an expedited timeline. According to Cuomo’s office, New York closed 24 adult and juvenile detention facilities since he took office and the inmate population declined by more than 5,000.
During the 2018 State of the State, Cuomo boasted that the state had invested more than $25 million annually in approximately 165 community-based alternatives to incarceration programs under his leadership.

Nixon pledges to end solitary confinement through executive action and to support legislation to end it permanently. She says she will pardon and commute the sentences of survivors of domestic violence, rape, and other forms of gendered violence who acted in self-defense.

She has pledged to reform the Board of Parole by appointing more commissioners who are social workers, psychologists, nurses, among other professions, and would support presumptive release that requires the Board to parole everyone at their first hearing unless there is a serious risk to public safety.

Marijuana

Nixon supports legalizing marijuana in New York State and says she considers it a “racial justice issue.” She wants to use the revenue from the sale of marijuana to pay for jobs training and education programs in the communities of color that have been most adversely affected by marijuana arrests. She proposes paroling people in jail for marijuana arrests, expunging their records and using some of the tax revenue from the legal sale of marijuana for reentry efforts. She calls pot an “important crop” for New York State.

Cuomo last year proposed decriminalizing possession of small amounts of marijuana, but it didn’t pass the legislature. In July, along with the New York State Department of Health, he released a health department report saying that the pros of legalizing marijuana outweigh the cons. The governor had previously called pot, which he says he experimented with in college, a “gateway drug,” but now supports legalization. In a televised gubernatorial debate, however, he said he disagrees with Nixon that the revenue should go to “reparations.”

Marijuana, which is legal in eight states and the District of Columbia, is likely to become to be legalized in New York State in the near future, experts say. It’s just a matter of precisely when.