When New York Gov. Kathy Hochul unveils her budget proposal Wednesday, she’s expected to include a plan to make major changes to the state’s cash bail laws for the third time since lawmakers overhauled them in 2019.
Hochul, a Democrat, is asking lawmakers to change the state’s bail laws in a way that would, in effect, give judges more discretion to assign bail in violent felony and high-level misdemeanor cases. The push comes in the wake of Hochul’s relatively narrow victory in last November’s election, in which her Republican opponent, Lee Zeldin, made crime and public safety the central tenets of his campaign.
The governor previewed her proposal during her State of the State address on Jan. 10, asking Democratic lawmakers — some of whom are wary of any effort to roll back the 2019 reforms, which eliminated cash bail for many charges — to support removing what’s known as the “least restrictive” standard in serious cases. Now, Hochul will flesh out the plan and include it in her budget, a maneuver that ensures lawmakers, including fellow Democrats who are wary of changing the bail laws, will have to negotiate the issue with her before the final spending and policy plan is due on March 31.
Hochul believes her plan will clear up confusion in the bail reform law — particularly by removing a clause that requires judges to impose the “least restrictive” release conditions to ensure a defendant will make their court appearances, which she says has been interpreted differently by judges across the state. But advocates of criminal justice reform see those proposed changes an attack on defendants’ civil rights.
“All I'm trying to do right now is remedy that inconsistency that exists in law,” Hochul told reporters in Albany last week. “And by focusing on the serious offenses, I believe that we should be able to garner the support.”
The Legal Aid Society, which provides free legal representation to those living in poverty in New York City, said Hochul’s bail proposal “accomplishes nothing of value” and runs against federal court precedent.
Here’s more on New York’s bail laws and how Hochul wants to change them:
How did New York overhaul its bail laws in 2019?
Prior to 2020, New York judges had the authority to require defendants in most criminal cases to post bail — requiring them to put up cash or bond in order to ensure they return for their court dates. If they showed up in court, they got their money back.
In April 2019, as part of the state budget, lawmakers and then-Gov. Andrew Cuomo eliminated judges’ ability to assign bail in many misdemeanor and nonviolent felony cases beginning in 2020. Under the reforms, those charged with such crimes are released while they await trial, though judges can impose electronic monitoring and pre-trial check-ins in certain circumstances.
In New York, people of color are disproportionately affected by the judicial system. In 2020, people of color represented 33% of the adult population in the state, but 66% of felony arrests and prison sentences, according to state data.
The goal of bail reform, supporters said, was to avoid criminalizing poverty. Under the prior system, only those who could afford to post bail would be freed before their trial, while other defendants sat in jail for weeks, months or years as they awaited trial.
Prosecutors and police officials across the state have been fiercely critical of the policy. New York City Mayor Eric Adams, a Democrat who has staked his mayoralty on reducing crime, has been among the most prominent critics of bail reform, blaming it for increased recidivism rates. For months, he has called on Hochul and lawmakers to give judges more discretion to set bail.
How has New York rolled back bail reform since then?
The state has now rolled back those 2019 reforms twice — first in 2020, and again in 2022.
The 2020 changes restored judges’ ability to set bail for a number of charges, including first-degree grand larceny, failure to register as a third-degree sex offender, second-degree burglary when someone is accused of entering a living area, escape from custody and any crime alleged to have caused a death.
They also allowed judges to set bail in circumstances where someone is charged with a felony while on probation, or in certain cases where someone is charged with a crime causing harm to a person or property while awaiting trial on a similar charge.
In 2022, Hochul — during her run for a full term against Zeldin, who repeatedly criticized her for not supporting a full repeal of the 2019 bail reforms — pushed through another set of changes.
Those included a measure making it easier to hold someone on bail if they are accused of committing certain repeat offenses, including theft crimes. For bail-eligible cases, the 2022 measure also allowed judges to consider more about a defendant’s history when choosing whether to assign bail, including whether they have a history of gun possession.
How does Hochul want to change the bail laws this year?
For bail-eligible cases, Hochul wants to get rid of a measure in the law that requires judges, at the time of arraignment, to impose the “least restrictive” means to ensure a defendant returns to court.
Hochul claims the law is inconsistent. On the one hand, it says judges can consider certain aspects of a defendant’s history when deciding whether to set bail, including whether they’ve committed domestic violence or violated an order of protection. On the other hand, they’re required to set the least restrictive conditions.
“Of course, we also must understand that changing our bail law will not automatically bring down crime,” Hochul’s office wrote in a policy book that accompanied her State of the State address. “What it will do is make it crystal clear that judges do, in fact, have the discretion necessary to protect the safety of New Yorkers.”
Supporters of the state’s bail laws, such as The Legal Aid Society, say the “least restrictive” standard is protected by the U.S. Supreme Court. A 1987 decision in United States v. Salerno found that bail, when used to protect against a defendant fleeing, should be set “at a sum designed to ensure that goal, and no more.”
So far, Democrats who control a large majority in both houses of the state Legislature say they’re waiting to see the details of Hochul’s proposal, which are expected to be included in her budget plan. Leaders of the Assembly and Senate have opposed prior efforts to provide more discretion to judges, saying it could invite bias — particularly against people of color — into the bail process.
“We did what we did [in 2019] because, too often, people — especially in poor communities, in Black and brown communities — were accused of minor misdemeanors, nonviolent felonies, and winding up incarcerated because they could not pay the bail,” state 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 NY’s bail laws?
State lawmakers held a hearing Monday in Albany to try to get to the bottom of that. But they’ve been hampered, in part, by not having a strong baseline of data from 2018, the year before the state began making major reforms.
Joe Popcun, the state Division of Criminal Justice Services’ executive deputy commissioner, told lawmakers that the data shows the rearrests have been “stable over time.”
In New York City, about 19% of defendants released ahead of their trial were rearrested within 180 days in 2019, according to DCJS data. That ticked up by only a few percentage points after bail reform took effect, to 22% in 2020 and back down to 21% in 2021.
Outside New York City, the percentage of rearrests went from 16% in 2019 to 23% in 2020 and 21% in 2021.
Overall, major crime statewide declined 24% from 2012 to 2021, according to the state Division of Criminal Justice Services, which testified at the hearing. But through September 2022 (the most recent data available), statewide crime increased 29% year over year compared to the same period in 2021.