How New York State Just Rolled Back Criminal Justice Reforms

Changes to the bail system — which conservatives and criminal justice reform opponents have been urging since the legislature overhauled New York’s bail laws in 2019 — have made up the most controversial piece of the public safety package debate, and were a main sticking point in the final days of budget negotiations.

Both Hochul and the Senate proposed provisions addressing what lawmakers have somewhat misleadingly labeled “repeat offenders” — people who are arrested for an alleged crime after being released before their trial for another alleged crime.

Despite some urgent messaging on the issue, New York’s bail law already has a repeat offense provision: Anyone who is accused of a felony or top-level misdemeanor “involving harm to an identifiable person or property,” then released pretrial, and then accused of another crime under those parameters before their trial, is eligible for bail. (Top-level misdemeanors include crimes like theft of less than $1,000, turnstile jumping, and making graffiti.)

In her original public safety package, Hochul wanted to eliminate all of the caveats in that part of the law: A judge would have been able to set bail for anyone accused of any crime after being released pretrial. The Senate rejected that provision in its memo and proposed more minor adjustments.

In this case, the budget language more closely mirrors the Senate’s proposals. For one, it will add a line to the law asserting that theft is included in crimes “involving harm to an identifiable person or property” (unless a judge determines that the theft was “negligible” and not “in furtherance of other criminal activity”). Currently, the phrase is undefined, and it is up to judges’ interpretation whether theft is included. With the budget, judges will be explicitly allowed to set bail if one is arrested for petit larceny while waiting for another petit larceny trial.

The budget bill also will expand the parameters of bail-eligible repeat offenses to include those that were committed after someone was released by the police prior to their arraignment for an alleged crime. It will also add criminal possession of a firearm to the category of bail-eligible repeat offenses. And aside from repeat offense provisions, it will add two specific gun charges — sale of a gun to a minor and, essentially, possession of a gun with the serial number worn off — to the list of bail-eligible offenses.

New York Focus and Bolts asked Michael Rempel, director of the Data Collaborative for Justice at John Jay College, to estimate the effects of the budget’s bail provisions using non-public New York City data from 2021. According to Rempel’s preliminary analysis, the budget bill will increase the number of bail-eligible cases at about one-tenth the rate that the provisions in Hochul’s original plan would have.

Per a report Rempel co-authored, Hochul’s proposed provisions would have likely increased the number of bail-eligible cases in New York City by 17 percent — or roughly 5,000 per year based on 2021 numbers. Expanding that statewide, other analysts put that number in the tens of thousands. (New York City accounts for roughly 40 percent of the state’s misdemeanors.)

So, according to Rempel’s analysis, the final budget will make about 500 additional cases eligible for bail each year in New York City, and hundreds or perhaps thousands more in the rest of the state. What portion of these additional cases judges will in fact choose to set bail in remains to be seen.

Despite the budget’s decreased scope compared to Hochul’s original proposal, Rempel expressed concerns about the bail provisions. The rollbacks, he asserted, are “non-evidence-based,” as there is no solid evidence that bail reform has led to increased crime.

Furthermore, he calculated that, since most felonies are already bail-eligible, the increase in bail eligibility will fall largely on misdemeanor cases. He then pointed out that most misdemeanors get little to no jail time, and to research showing that pretrial incarceration likely leads to greater recidivism.

“That means that these low-level misdemeanor cases who do face pretrial detention will likely be detained for only a short period of time, and then released, if anything, with a higher likelihood of rearrest than they otherwise would have had they not experienced the documented harms of incarceration,” he said.

In addition to bail provisions, the budget addresses the Hochul and Senate memos’ proposals to increase the frequency of pre-arraignment detention.

State law dictates when police can hold people they arrest and when they must release them, and the budget adds three crime categories to the list of those that allow for pre-arraignment detention. The first two are hate crimes and criminal possession of a weapon on school grounds, as long as both are allegedly committed by an adult. These will affect relatively few cases, since criminal possession of a weapon on school grounds is a rare charge, and most hate crimes are already eligible for pre-arraignment detention. According to Rempel, in 2021 in New York City, just over 30 cases combined from those categories were ineligible for pre-arraignment detention.

The third crime category the budget will make eligible for pre-arraignment detention is made up of the repeat offenses as defined in the adjusted bail eligibility section — for example, the theft allegedly committed by someone waiting for another theft trial. According to Rempel, the cases that will be made newly eligible for pre-arraignment detention under this category likely “number in the thousands.”

A central point of contention in the bail reform rollback debate has been over what is sometimes called a “dangerousness standard,” or parameters that allow a judge to order someone detained pretrial as a public safety measure. New York has never had an outright dangerousness standard, so judges can only legally set bail in order to ensure that a defendant shows up for their court date — a policy resulting from decades of debate.

The budget will not implement a dangerousness standard. Rather, it includes a stripped-down version of a provision from Hochul’s memo that will add new items that a judge must consider when determining a defendant’s likelihood of returning to court. But those items offer echoes of public safety-based bail considerations.

In determining whether any defendant is a flight risk, the budget mandates that a judge consider their history of compliance with court orders of protection; the defendant’s history of gun possession or use; and whether the crime the person is charged with caused anyone “serious harm.”

While it’s easy to see how one’s compliance with protective orders relates to whether they are a flight risk, gun possession and the harm caused by the alleged crime are factors more commonly associated with dangerousness. Even though it’s not legally permitted, judges in practice already frequently set bail with an eye to dangerousness. The new provisions could increase that tendency.

Like the bail system, New York’s discovery laws — which dictate the procedures for evidence-sharing between prosecution and defense during criminal proceedings — as well as its speedy trial laws, were amended in 2019. Up until then, New York’s rules were among the nation’s friendliest to prosecutors, allowing prosecutors to withhold information until just before trial—with the consequence that defendants often felt pressured into pleading guilty because they didn’t know what evidence the prosecution had against them.

But prosecutors have taken to the press to decry what they describe as undue burdens that discovery requirements now place on their offices, and Hochul included discovery reform rollbacks in her public safety package.

Hochul’s memo, the Senate’s memo, and updated discovery-specific budget language first published by WMHT this week all varied wildly in the way they proposed to amend discovery reform — evidence of a complex and often misunderstood topic. Though public defenders still have concerns, the provisions that ended up in the budget are much less controversial than what Hochul and the Senate initially proposed.

The budget will amend the process for providing late additions to discovery by allowing for fewer consequences if the original discovery was filed in good faith, or the late filing wasn’t the fault of the filing party. It will also soften language that gives judges the power to dismiss cases when one party isn’t fulfilling their discovery obligations, and allow a defendant to apply for pretrial release when there are prolonged disputes over prosecutors’ failure to meet discovery requirements.

The budget will also exempt prosecutors from certain discovery requirements in traffic cases — a point from Hochul’s proposal.

Sam Feldman, an appellate public defender in New York City, acknowledged that much of the provisions are commonsense, but still expressed concern that prosecutors could take the slack these changes in the law give them and run with it.

“Many judges have proven so unwilling in the past couple of years to actually apply the discovery reform laws against prosecutors who’ve failed to comply with their obligations that I worry that, if you give them any loophole, they will apply it across the board,” Feldman said. He pointed to the provision allowing for fewer consequences for late discovery: “It would be easy for judges to presume good faith and due diligence and basically make the exception the rule,” he said.

The budget’s discovery provisions are a far cry from the provisions in Hochul’s public safety package, which would have allowed courts to deem prosecutors in “substantial compliance” with discovery obligations if they handed over all items that they needed to argue only their own case. This was a non-starter for discovery reform proponents, as it would have created conditions for the prosecution to avoid producing evidence that could prove exculpatory for defendants.

Furthermore, both Hochul’s and the Senate’s memos proposed a provision that would have added an “otherwise unavailable” category to a part of discovery law that excuses prosecutors for failing to turn over evidence that is lost or destroyed. The vagueness of that provision concerned advocates, as it could have provided prosecutors with opportunities to prematurely give up on obtaining important records.

The Hochul and Senate proposals also would have defined “otherwise unavailable” evidence as that which has never been in prosecutors' direct “possession” and which they made “a diligent, good faith effort” to obtain. This deviates from the discovery reform law, which, critically, also placed law enforcement material under prosecutors’ legal “possession.” The disparity led public defenders to assert that the Hochul and Senate proposals would have provided prosecutors more of an opening to fail to turn over, for example, police body camera footage, which often favors defendants.

Hochul’s plan included an expansion of what is known as Kendra’s Law, which, among other provisions, allows the state to involuntarily commit people to inpatient mental health treatment if a court finds that they pose a “substantial” risk of harming themselves or others.

Hochul's plan also called for the state to have the power to involuntarily commit those who appear to lack “significant capacity” to feed, clothe, or otherwise take care of themselves, or to “accept” help. The governor said the expansion would help address “the acute needs of the seriously mentally ill.” Critics characterized it as a criminalization of mental illness.

“People with mental illness are more likely to be victims of crime than perpetrators of it,” the New York Civil Liberties Union wrote in a statement. “But the Governor’s proposals presume that people living with mental illness are criminals.”

The Senate’s proposal took a different approach — though one still tied to the criminal-legal system. It called for adding new subsections to criminal law which would allow a court to order a mental health assessment — which could still result in involuntary commitment — as a condition of pretrial release for people accused of crimes.

In this instance, the budget adopted adaptations of both proposals. It will add subsections to criminal law to allow for a court-ordered assessment with the possibility of involuntary commitment. And it will expand Kendra’s law to allow for court-ordered outpatient treatment for those who completed an outpatient program and have “experienced a substantial increase in symptoms of mental illness” that “substantially interferes with … major life activities.”

With only slight variations between them, both the Hochul memo and the Senate memos proposed to lower the threshold to prosecute people for gun trafficking, and a version of their proposals made it into budget legislation. Previously, one could be guilty of second degree gun trafficking — punishable by three and a half to 15 years in prison — if they gave away or sold five or more guns in a single year; the threshold is now two guns. For first degree gun trafficking, which carries a five to 25-year sentence, the old threshold was giving or selling 10 guns in a year; now it’s five. Additionally, in New York, a person was presumed to be possessing guns with the intent to sell them if they had five or more, and the budget lowers that to three.

The budget also closes a jurisdictional “gap,” per Hochul’s memo, by giving family courts jurisdiction over those arraigned as adults for a crime allegedly committed before they turned 18, and mandates community-based treatment referrals for youth released from family court. And it includes provisions that will require the courts and the state government to collect data on prosecutors’ bail requests and how judges ruled on them, which was an item in the Senate proposal.