Here’s how Gov. Kathy Hochul wants to change NY’s bail laws (again)
When New York Gov. Kathy Hochul presents her budget proposal on Wednesday, she is expected to include a plan to fundamentally change the state’s cash bail laws for the third time since lawmakers revised it in 2019.
Hochul, a Democrat, is calling on lawmakers to change the state’s bail laws to actually give judges more discretion in issuing bails in cases of violent crimes and high-level misdemeanors. The move follows Hochul’s relatively narrow victory in last November’s election, in which Republican opponent Lee Zeldin made crime and public safety central to his campaign.
The governor unveiled her proposal during her Jan. 10 state of the state address, urging Democratic lawmakers — some of whom have balked at efforts to roll back 2019 reforms that eliminated cash bail for many charges — to do so support to support the so-called abolition in severe cases the “least restrictive” standard. Now Hochul will flesh out the plan and include it in her budget, a maneuver that will ensure lawmakers, including other Democrats wary of changing bail laws, have to negotiate the matter with her before the final spending and policy plan is due on March 31st.
Hochul believes her plan will eliminate confusion in the Bail Reform Act – specifically by removing a clause requiring judges to impose the “least restrictive” release conditions to ensure a defendant appears in court, which she says varies by judge has been interpreted across the state. However, proponents of criminal justice reform see these proposed changes as an attack on the civil rights of the accused.
“All I’m trying to do right now is to get rid of this inconsistency in the law,” Hochul told reporters in Albany last week. “And by focusing on the serious offenses I think we should be able to win the support.”
The Legal Aid Society, which provides free legal representation to people living in poverty in New York City, said Hochul’s bail proposal “does nothing of value” and violates federal court precedent.
Here’s more about New York’s bail laws and how Hochul wants to change them:
How did New York revamp its bail laws in 2019?
Prior to 2020, New York judges had the power to require defendants to post bail in most criminal cases — they were required to post cash or bail to ensure they returned to their court dates. If they appeared in court, they got their money back.
In April 2019, as part of the state budget, legislature and then government. Starting in 2020, Andrew Cuomo eliminated the ability of judges to assign bail in many misdemeanor and nonviolent crime cases. Under the reforms, those charged with such crimes will be released while awaiting trial, although judges can order electronic surveillance and pre-trial reviews in certain circumstances.
In New York, people of color are disproportionately affected by the justice system. In 2020, according to state data, people of color made up 33% of the state’s adult population but 66% of arrests and prison sentences.
The goal of bail reform, proponents said, is to avoid criminalizing poverty. Under the previous system, only those who could afford to post bail were released before their trial, while other defendants served weeks, months, or years in prison while awaiting trial.
Prosecutors and police officers across the state have harshly criticized the policy. New York City Mayor Eric Adams, a Democrat who dedicated his mayoralty to reducing crime, is among the most prominent critics of bail reform, blaming it for increased recidivism rates. For months he has been calling on Hochul and lawmakers to give judges more discretion in setting bails.
How has New York rolled back bail reform since then?
The state has now rolled back these 2019 reforms twice – first in 2020 and again in 2022.
The 2020 changes restored judges’ ability to set bail on a range of charges, including first-degree grand theft, failing to register as a third-degree sex offender, second-degree burglary when someone is accused of entering a residential area, fleeing custody and any crime allegedly causing death.
They also allowed judges to set bail in cases where someone is charged with a crime while on probation, or in certain cases where someone is charged with a crime that caused harm to a person or property while on trial waiting for a similar charge.
In 2022, Hochul pushed through another set of changes during her run for a full term against Zeldin, who she has repeatedly criticized for not supporting a full repeal of the 2019 bail bond reforms.
This included a measure making it easier to hold someone on bail if they are accused of certain repeat offences, including theft crimes. In cases where bail is an option, the 2022 measure also allowed judges to consider more about a defendant’s background when deciding whether to post bail, including whether they had a history of gun ownership .
How does Hochul plan to change bail laws this year?
For cases eligible for bail, Hochul wants to scrap a statutory measure that requires judges at the time of indictment to impose the “least restrictive” means of ensuring a defendant returns to court.
Hochul claims the law is contradictory. On the one hand, it states that judges can consider certain aspects of a defendant’s history when deciding whether to post bail, including whether they have committed domestic violence or violated a protective order. On the other hand, they must set the least restrictive conditions.
“Of course, we also need to understand that changing our bail law won’t automatically reduce crime,” Hochul’s office wrote in a policy book accompanying her state of the state address. “What it’s going to do is make it crystal clear that judges do indeed have the discretionary powers necessary to protect the safety of New Yorkers.”
Proponents of state bail laws like The Legal Aid Society say the “least restrictive” standard is protected by the US Supreme Court. A 1987 decision in United States v. Salerno held that bail, when used to protect a defendant from escaping, “should be fixed at a sum intended to secure that end, and not more”.
So far, Democrats, who control large majorities in both houses of the state legislature, say they are awaiting the details of Hochul’s proposal, which is expected to be included in their budget. Assembly and Senate leaders have resisted previous efforts to give judges more discretion, saying it could introduce bias — particularly against people of color — into the bail process.
“We did what we did [in 2019] because people — especially in poor communities, in black and brown communities — have all too often been charged with minor misdemeanors, nonviolent crimes, and incarceration for not being able to pay bail,” said Senate Majority Leader Andrea Stewart-Cousins ( D -Yonkers) said last week. “We never, ever want to criminalize poverty. We want to criminalize criminals, not poverty.”
What does the data tell us about New York’s bail laws?
State lawmakers held a hearing Monday in Albany to get to the bottom of it. But they were hampered in part by not having a solid data base from 2018, the year before the state began major reforms.
Joe Popcun, executive deputy commissioner for the state Division of Criminal Justice Services, told lawmakers the data shows arrests have been “stable over time.”
In New York City, about 19% of those released before trial in 2019 were arrested again within 180 days, according to DCJS data. After the security deposit reform came into force, this rose by just a few percentage points to 22% in 2020 and again to 21% in 2021.
Outside of New York City, the arrest percentage increased from 16% in 2019 to 23% in 2020 and 21% in 2021.
Overall, serious crime nationwide fell 24% from 2012 to 2021, according to the State Division of Criminal Justice Services, which testified at the hearing. But through September 2022 (the latest available data), nationwide crime increased by 29% year-on-year compared to the same period in 2021.