Gov. Kathy Hochul’s last-minute plan to change some of New York’s landmark criminal-justice reforms has roiled state budget negotiations, which continue behind closed doors ahead of the fast-approaching deadline to approve the state spending plan.
The Democratic governor’s 10-point plan, obtained by Gothamist and other media outlets after Hochul’s office sent it to legislative leaders last week, has become the dominant topic of public discussion among state lawmakers and advocates heading into the final days of budget talks.
Hochul and Lt. Gov. Brian Benjamin have characterized the plan as a targeted approach to improve the state’s criminal-justice laws and public safety without gutting the state’s bail reforms. New York eliminated cash bail in 2019 for most misdemeanors and non-violent felonies.
“Every one of the 10 points I put forward was a balanced, reasonable approach that continues to respect the rights of the accused,” Hochul told reporters at the Capitol on Friday. “And as I’ve said and I’ve written, this is not about undoing bail reform. It’s about finding areas we can strengthen it — make it work for people.”
Progressive-leaning Democrats, however, fear the changes would undermine a variety of recent measures to reshape the bail and evidence discovery systems, which lawmakers and then-Gov. Andrew Cuomo approved in hopes of ensuring a defendant isn’t incarcerated just because they don’t have the means to get out. (Cuomo has since come out calling for the laws he signed to be changed.)
The political implications for Hochul are significant. On Friday, New York City Public Advocate Jumaane Williams, a Democrat running against her from the left, rallied outside her Manhattan office to accuse the governor of caving in to fearmongering. On Thursday, a Republican (Rep. Lee Zeldin) and Democrat (Rep. Tom Suozzi) running against Hochul held separate news conferences in Albany to fault her plan for not going far enough.
“(New Yorkers) want a major overhaul to this legislation,” Zeldin said of the cash bail reforms. “Law enforcement needs it. Our judicial system needs it. Our streets, our subways should belong to law-abiding New Yorkers, not be turned over to criminals.”
Hochul is hoping to include the plan in the state budget, which is due before the state’s fiscal year begins April 1. Here’s what her public-safety proposals would actually do.
Proposal No. 1: Giving judges more discretion in serious crimes
New York’s cash bail laws don’t allow judges to consider a defendant’s “dangerousness” when deciding pretrial release conditions. And while they allow judges to set cash bail for violent felonies and serious misdemeanors, they are required to hand out the “least restrictive” release conditions that will ensure a defendant shows up in court.
Hochul’s plan would change that. For the most serious crimes like murder, manslaughter and certain gun-possession offenses, Hochul would allow judges to set bail conditions that “assure the safety of any person or persons or the community” if the defendant has:
- Violated an order of protection
- A history of possessing or using guns
- Been convicted of a violent felony within the last five years or has a “significant criminal history” that suggests he may commit more crimes
- Threatened harm against someone
- Posed a flight risk
To supporters of the current law, the lack of a “dangerousness” standard is a feature, not a bug. People like Stewart-Cousins and Heastie have argued that allowing a judge discretion to determine whether someone is dangerous invites the possibility, if not probability, of racial bias.
Lt. Gov. Benjamin, meanwhile, pushed back on the idea that Hochul’s plan includes a “dangerousness standard” at all.
“If you look at the proposal, it has specific identifiable actions that it would require, as is the case in our domestic violence cases,” he said Tuesday.
Proposal No. 2: Making repeat offenders subject to arrest and bail
Under Hochul’s plan, anyone charged with a crime while awaiting trial on a separate charge would be eligible for bail. As it stands, that’s only the case when someone is charged with a second felony or class A misdemeanor involving harm to another person or property.
Hochul’s plan would primarily affect people who are charged with lower-level felonies and misdemeanors that normally only require an appearance ticket. Under her proposal, police would be able to arrest someone on those charges – rather than just issue a summons – if it is their second charge within 18 months.
From there, a judge could decide to impose bail if the person is alleged to have committed the crime while they were released on a separate charge, awaiting trial. A prosecutor would have to demonstrate there was probable cause the defendant committed both crimes.
Proposal No. 3: Make more gun crimes, hate crimes and subway crimes subject to arrest
Hochul’s third proposal would change the criminal procedure law to make more crimes subject to arrest, rather than just an appearance ticket.
Among the crimes Hochul wants to add: Criminal possession of a firearm on school grounds, or in cases where a person is required to register their weapon under the SAFE Act but knowingly fails to do so.
She would also make clear hate crimes and crimes committed against MTA or Port Authority employees are subject to arrest .
Proposal No. 4: Make more gun crimes eligible for bail
The same gun crimes Hochul wants to make eligible for arrest would be eligible for bail.
Proposal No. 5: Enact tougher gun-trafficking laws
Under current law, someone has to illegally sell 10 firearms over a one-year period to be charged with first-degree criminal sale of a firearm, which is a class B felony. Hochul’s proposal would change that to three firearms.
For second-degree criminal sale of a firearm, somebody would have to sell at least two firearms over a one-year period under Hochul’s plan, down from five. That’s a class C felony.
Proposal No. 6: Changes to discovery reforms
This proposal is something district attorneys have been pushing for since the Legislature and then-Gov. Andrew Cuomo reformed the state’s evidence discovery statutes in 2019.
Under the 2019 reforms, prosecutors are required to turn over evidence to the defense within 20 days of arraignment if the defendant is in custody, in most cases. If the defendant is not in custody, prosecutors have 35 days. They can also seek a 30-day extension in some cases.
The more important deadlines, however, are in the speedy trial law, which says a prosecutor has to be ready to present a case within 60 days for a low-level misdemeanor, 90 days for a high-level misdemeanor and six months for a felony charge.
Supporters say the reforms were a necessary change that keeps criminal defendants from waiting months for the evidence against them, if they got it before trial at all. Prosecutors have said the timelines are unrealistic and have kept them from pursuing certain cases.
Hochul’s proposal would make two key changes.
First, she would prevent a case from being dismissed if a prosecutor is in “substantial compliance” with their discovery obligations, meaning they have “disclosed all items and information … to present their case at trial.” The governor’s office claims this would alleviate situations where a case is dismissed because a prosecutor failed to send over a document with information that was included in other records sent to the defense.
Hochul’s proposal would also exclude traffic cases from the discovery timelines, arguing that the volume of traffic cases is too burdensome to comply.
Proposal No. 7: Changes to Raise the Age law
In 2017, New York approved a law meant to remove most 16- and 17-year-olds from the state’s criminal courts. It came after reform advocates waged a years-long “Raise the Age” campaign.
A multi-year rollout ensued, with misdemeanor cases kicked to Family Court and non-violent felonies sent to a new “youth part” of criminal court. Violent felonies, like murder, rape and arson, were kept in criminal court.
Under Hochul’s plan, a judge would be able to keep gun-possession cases in criminal court for 16- and 17-year-olds, even if the gun wasn’t actively displayed. Her office’s memo argues that it’s necessary to deal with an uptick in juvenile gun arrests, which increased from 174 in 2018 to 439 last year.
Proposal No. 8: Boost funding for pretrial and diversion programs
Hochul’s January budget proposal included an $83.4 million boost for gun-violence programs and for pretrial services. Her memo suggests “more funding” will be added for services, as well as for an employment program for people wrapped up in gun violence. She has also pledged to get hundreds of millions of dollars in existing funding out the door to help localities implement the Raise the Age program.
Proposal No. 9: Extend and expand Kendra’s Law
This proposal was included in Hochul’s January budget proposal. It would extend Kendra’s Law – a 1999 measure that allows a court to mandate outpatient treatment for people with mental illness – for five years, rather than allow it to expire in July.
Hochul also wants to expand the law to allow it to apply to people who “lack significant judgment to accept” food, clothing, shelter or medical care, so long as that person is at “substantial risk” of harming themselves.
Proposal No. 10: More funding for mental health treatment
Hochul first proposed putting $21 million toward Safe Options Support teams in her budget proposal in January. The state is already in the process of seeking mental-health providers to form the teams, which will be tasked with interacting with homeless individuals in New York City and targeted regions in the rest of the state and connecting them with services.
This story has been updated with more specific information regarding the governor’s proposals.