Hochul Has a New Bail Proposal. It’s a Lot Like Her Old One.

With budget talks at a stalemate, Hochul offered the legislature new draft language on bail. It would accomplish largely the same result as her previous plan: a dramatic expansion in judges’ ability to set bail.

Chris Gelardi   ·   March 31, 2023
Governor Kathy Hochul presents her Fiscal Year 2024 Budget proposal on February, 2023, in Albany, New York | Mike Groll / Office of Governor Kathy Hochul

GOVERNOR KATHY HOCHUL has a new proposal to dictate how New York sets bail — and it shows that she’s digging in her heels. Last night, her staff presented legislative leadership with draft language — reviewed by New York Focus — that would allow judges to set bail based on how likely they deem a defendant to violate the conditions of their release.

The specific language is new, but it would likely yield the same result as her previous proposals: reversing a foundational tenet of New York bail law by effectively allowing judges to set bail on defendants they deem dangerous.

The text has not yet been presented to rank-and-file members, and it is unclear whether legislative leadership is open to the plan. Representatives for Hochul and Assembly Speaker Carl Heastie did not immediately respond to requests for comment. A spokesperson for Senate Majority Leader Andrea Stewart-Cousins said he had “nothing new at this time” to share.

In the last week before the official April 1 deadline, an impasse on the state’s bail laws stalled negotiations on the roughly $230 billion budget. In her original proposal, Hochul sought to eliminate the longstanding requirement that judges can only set bail as a means to ensure that defendants return to court, known as the “least restrictive” standard.

The legislature had rejected the move and shown no signs of yielding, until Politico reported Tuesday night that the Assembly offered a counter-proposal that would strip the language as Hochul desires. The source that shared Hochul’s new language said that the Assembly’s proposal would have replaced the standard with a functionally similar requirement that judges make release decisions “narrowly tailored” to findings about defendants’ likelihood to return to court.

This is the second year in a row in which Hochul has attempted to expand pretrial incarceration for criminal defendants. In last year’s budget, she succeeded in passing a watered down version of her proposals, including rollbacks to New York’s 2019 bail reform law. The change she’s seeking this year would alter a much more foundational aspect of state criminal procedure. It would offer judges near limitless discretion in bail-eligible cases, giving them a backdoor to consider defendants’ “dangerousness” in pretrial considerations — a longtime goal of tough-on-crime politicians and law enforcement. (In practice, judges already frequently set bail with an eye to public safety.)

When Hochul first announced her plan in February, she asserted that it was meant to remedy confusion in New York’s current bail law, as it requires that judges consider various factors — including a defendant’s history of firearm possession and general “activities and history” — in determining the “least restrictive” conditions necessary to get a defendant back to court. The courts have called that premise into question: “I don’t know that judges are confused,” acting Chief Administrative Judge Tomiko Amaker testified later that month.

As proponents of Hochul's plan have pointed out, New York is the only state in the country that mandates that judges only take likelihood of returning to court into consideration for bail. That hasn’t always been the case: Before the mass incarceration era, all states’ bail laws focused solely on court appearances. But throughout the 1970s and ’80s, 49 states and the federal government introduced dangerousness into their bail statutes. Despite spearheading tough-on-crime trends in other realms — and revising its bail code in 1971 — New York stuck to bail’s original purpose.

Last week, Hochul highlighted a recent study by the Data Collaborative for Justice at John Jay College, which identified a recent uptick in recidivism for people with substantial criminal histories. But an author of that study has said that Hochul’s proposal would likely do little to address that, as the report also found that there was no difference in recidivism for bail-eligible cases since the 2019 reforms.

The report also found that bail reform has actually led to decreased recidivism for people charged with misdemeanors and felonies categorized as nonviolent. At least four other studies have concluded that bail reform has had no discernible effect on public safety.

In response to the news that Hochul is mostly holding her ground, advocacy groups renewed their commitment to rejecting changes to bail law.

“The Legislature must outright reject Governor Hochul’s eleventh hour hijacking of the budget process,” the Legal Aid Society said in response to news of Hochul’s latest proposal. “Judges already have wide discretion to set bail or remand, and eliminating the ‘least restrictive’ standard in existing statute erodes the purpose of bail and would only condemn more of our Black and Latinx clients to suffer pretrial incarceration.”

Progressive legislators have also reaffirmed their commitment to holding the line on bail. “The Senate and Assembly are staying strong. The leadership is staying strong,” Assemblymember Anna Kelles shouted to a crowd of supporters at a rally in the state Capitol on Thursday. During a press conference later that day, Stewart-Cousins echoed that the legislature is unwilling to fundamentally alter state bail law.

If she and Heastie feel the same way about Hochul’s latest language, Albany will remain gridlocked.

This is a developing story that will be updated as legislative responses emerge.

Chris Gelardi is a reporter for New York Focus investigating the state’s criminal-legal system. His work has appeared in more than a dozen other outlets, most frequently The Nation, The Intercept, and The Appeal. He is a past recipient of awards from Columbia… more
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