Hochul’s New Bail Reform Plan Would Reverse Decades-Old Protections

WHEN GOVERNOR KATHY HOCHUL released her executive budget on Wednesday, observers expected to see yet another round of rollbacks to New York’s bail reform law. Since its passage in 2019, the landmark legislation had come under fire from tough-on-crime politicians and pundits in New York and nationwide. Watchers expected Hochul, still reeling from a too-close challenge from far-right Lee Zeldin, to unveil a map leading back toward the pre-bail reform status quo. But she didn’t.

Instead, Hochul reached beyond the 2019 law, putting Albany on track to reverse a foundational tenet of New York’s criminal procedures.

Even before the 2019 bail reform law — which eliminated cash bail and mandated release for most misdemeanors and “nonviolent” felonies — New York required that judges setting bail consider only a person’s likelihood of returning to court. For bail-eligible cases, Hochul’s proposal would strip those considerations from the law entirely, instead offering judges near limitless discretion.

“It’s complete arbitrariness,” said Arielle Reid, supervising attorney at the Legal Aid Society’s decarceration project.

“It’s not just a departure from the bail reform statute,” said Krystal Rodriguez, policy director of the Data Collaborative for Justice at John Jay College. “It’s a departure from what has been New York state law for decades.”

HOCHUL HAS ALREADY chipped away at the 2019 statute, diluting key parts of the law with additional language last year. Now, the governor says she wants to remedy inconsistencies.

As part of rollbacks that Hochul pushed through in last year’s state budget, she added to a list of factors that a judge must consider when determining what is needed to get someone to return to court.

The factors varied widely. Some, like defendants’ history of “flight to avoid criminal prosecution,” were self-explanatory. Others seemed like workarounds to allow judges to consider public safety, like mandates to evaluate a defendant’s history of gun possession or whether their alleged crime caused anyone “serious harm.” Yet others were amorphous and vague: Judges were required to consider a defendants’ “activities and history,” which went undefined.

It’s complete arbitrariness.

This year, Hochul is revisiting those factors — saying that they conflict with judges’ obligation to set the least restrictive standards to make sure someone comes back to court. And instead of editing the list of factors, her solution is to strike the “least restrictive” and return-to-court standards for all bail-eligible offenses.

“It leaves this gap where judges on an individual basis on every single case are going to have to decide how to approach the issue of whether to detain this person,” said Rodriguez.

Legislative leaders have made clear that they aren’t interested in further rollbacks to the bail reform law. But because Hochul has introduced her proposal in the state budget, they’ll be forced to negotiate it along with the rest of the more than $200 billion annual legislative package.

The governor has said that her latest proposal “will not increase the overall rate of pretrial incarceration,” but it’s hard to see how that’s possible. Her office did not respond to questions by press time.

Hochul’s proposal “will send more Black and brown people to jail pretrial without enhancing public safety,” Assemblymember Latrice Walker, a sponsor of the 2019 reform law, wrote in a statement.

“There’s no guiding principle about what judges should be considering,” said Reid. “It’s just, ‘Judges have these factors to consider, and then once they consider the factors, they can do whatever they want.”

LAST YEAR, AFTER Albany passed the rollbacks, New York Focus wondered whether Hochul was seeking to offer judges a workaround to consider public safety — rather than only a person’s likelihood of returning to court — when considering bail and pretrial release. The governor’s latest proposal offers clearer insight.

Unlike other states, New York has never had a public safety consideration, known as a “dangerousness standard,” in its bail laws. (In practice, however, judges frequently set bail with an eye to public safety.) That’s been a point of contention in recent years: New York City Mayor Eric Adams, his predecessor Bill de Blasio, and former Governor Andrew Cuomo have all lobbied the legislature to implement one. Lawmakers have held firm, arguing that it’s a recipe for even more racial disparities in the criminal system.

Hochul herself has rejected calls to implement an outright dangerousness standard. “Sometimes dangerousness is determined by the color of their skin and a perception of dangerousness,” Hochul told WNYC in August. “And that is an unfair system. That is not a justice system that we can be proud of.”

But her latest proposal introduces far more subjective judicial discretion into the bail process.

It’s a departure from what has been New York state law for decades.

“It’s going to take us right back to the days of arbitrary and biased outcomes,” said Reid, “because judges are just going to have unfettered discretion to act based on their whims.”

Because Hochul’s proposal relies heavily on judicial discretion, it’s nearly impossible to predict how many people might end up jailed if it passes. But Michael Rempel, director of John Jay’s Data Collaborative for Justice, pointed to data that suggests that judges are already setting bail for eligible cases at higher rates than are necessary to get people to return to court: In 2021, judges either set bail for or sent directly to jail 60 percent of those accused of violent felonies, even though, that year, only nine percent of people released pretrial in New York City and 18 percent in the rest of the state failed to show up to court.

Hochul’s proposal wouldn’t affect the more than 80 percent of criminal cases that aren’t eligible for bail under the 2019 reform — in contrast to last year’s rollbacks, which made more of what bail reform critics have labeled “repeat offenders,” or people accused of crimes while out on release pretrial, eligible for bail. There aren’t yet numbers available on how many more people have been jailed as a result of those rollbacks, but analysts estimated that it would likely make hundreds or thousands of cases bail-eligible.

CORRECTION: February 2, 2023 — This story previously cited an incorrect estimate of the increase in people made bail-eligible as a result of Hochul's 2022 bail reform rollbacks. Analysts have said that the number is in the likely hundreds or thousands, not tens of thousands.