Late last month, 17-year-old Bronx teenager Pedro Hernandez was released from Rikers Island after a year awaiting trial for his involvement in an alleged shooting that multiple witnesses say he had nothing to do with. Hernandez, an honors student who earned a full college scholarship behind bars, was not able to make his $255,000 bail. Instead, after a judge reduced the bail to $105,000, the Robert F. Kennedy Human Rights organization paid it off.
New York Democratic State Senator Mike Gianaris said Wednesday that he hopes Hernandez's case will help build support for a bill that would eliminate the cash bail system entirely. He first introduced it two years ago.
"Unfortunately, government is slow and reactive," Gianaris told Gothamist on Wednesday. "Often times it takes examples of the failures to get moving."
"We need to overcome the people, including some of my colleagues, who think the bail system is intended to keep people off of the street," Gianaris added. "The bail system exists to make sure people show up for a trial. And when two people are accused of the same thing, the rich person is on the street and the poor person is in jail. It is discriminatory against the poor by definition."
In lieu of bail, Gianaris's bill would provide judges with three options: release on recognizance, which is the option already used in most misdemeanor cases in New York; conditional release with monitoring; or incarceration "in the most extreme cases."
In 2016, the vast majority of the average daily population on Rikers Island were defendants awaiting trial—78 percent of 9,790 people, according to a recent report commissioned by the City Council. Of those, 52 percent were black and 33 percent were Hispanic. Only 10 percent were white. And of the total pre-trial jail population, close to 75 percent were those simply unable to make bail.
City Hall has made some efforts to reduce this population under Mayor Bill de Blasio, including diversion programs and bail expediters who work with families to quickly collect payments. The number of people detained on bail of $2,000 or less has been reduced by 36 percent under de Blasio, according to his office.
"We're not there yet," challenged JoAnne Page, director of the Fortune Society, a nonprofit that offers alternatives to incarceration. "We still use bail routinely in low amounts in cases where people should just be released on their own recognizance."
— Sen. Mike Gianaris (@SenGianaris) August 9, 2017
Page is optimistic about Gianaris's legislation, introduced around multiple high profile cases: Hernandez, as well as Kalief Browder, who committed suicide after spending years on Rikers Island for a crime he did not commit because he was unable to make bail and refused to take a plea.
"One, there is a real push to close Rikers Island," Page said. "The second is, we've had some real high profile cases that demonstrate how much damage can be done."
Joshua Norkin, project manager at the Legal Aid Society's Decarceration Project, is less optimistic. He predicts Gianaris will face an uphill battle in Albany.
Both Governor Andrew Cuomo and Mayor de Blasio have endorsed a reform measure that would allow judges to consider a defendant's public safety risk in setting bail. The option is available in the majority of states, but has been shot down repeatedly in New York, as recently as this year. Norkin said he believes the New York Assembly has been receptive to the defense community's concerns "about detaining presumptively innocent people before they are convicted of anything."
Without a dangerousness provision, or some sort of "messy legislative compromise," Norkin predicted Gianaris's bill would flounder.
More practical, he said, is a concerted effort to change how the bail statute is applied. Since the 1970s, judges have had nine forms of bail to choose from, including cash and bail bonds paid upfront, and unsecured or partially secured bonds. In the latter two categories, defendants who make their court appearances either don't have to pay, or are refunded a small downpayment at the end of the case.
"The defense community is saying, 'We've already got a statute that could essentially provide the reform we need. Let's really put it to the test,'" Norkin said.
"I'm supportive of all of those efforts," Gianaris said of the internal reform movement. "But I'm trying to address the problem all at once, and trying to get people to understand that bail is an anachronism."
As for his chances in Albany, "Many of my colleagues on the Democratic side are on board," he said. "We're growing support by the day." This morning, Gianaris will promote his bill at a rally for Hernandez outside the Bronx DA's office.
Spokespeople for Senate Majority Leader John Flanagan and the Independent Democratic Conference, which caucuses with Senate Republicans, did not immediately comment.
A spokesperson for Governor Cuomo said his office will review the legislation.