Criminal Justice New York State Budget

Here’s What the Budget Would Do About Bail

Budget legislation released Monday night includes eight pages of bail law markups — significantly more than the governor announced last week. A vote is imminent.

Chris Gelardi · May 2, 2023

While they do not upend bail, the changes could signal to judges that they should take a heavier handed approach to setting pretrial conditions. | Daniel Schwen

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On Monday night, officials in Albany at last released the text that will define this year’s changes to bail law. Nestled within one of the state’s 10 budget bills, it includes eight full pages of red and green markups.

They reflect a significantly broader overhaul than the one described by Governor Kathy Hochul’s administration at a press conference last week, when she announced a “conceptual” budget deal and alluded to a victory in her long fight to roll back bail laws. The changes are also bigger than rank-and-file legislators anticipated: A Senate and an Assembly source each told New York Focus that the text is more extensive than what they were told in their chambers’ conferences.

The legislature is expected to vote on the budget bill with the bail legislation Tuesday evening, just 24 hours after it was unveiled and lawmakers learned of the changes.

Some of the bail agreement’s changes are bureaucratic and meant to eliminate redundancies. But others could alter the way judges decide the fate of legally innocent people: The bill is filled with adjustments that three experts consulted by New York Focus interpreted as empowering judges to set pretrial conditions in ways that currently aren’t explicitly outlined in the law.

While they do not upend bail, the changes could signal to judges that they should take a heavier handed approach to setting pretrial conditions. “I think it sets priorities for the court,” said Krystal Rodriguez, policy director of the Data Collaborative for Justice at John Jay College.

Here’s what the legislation would do.

Signal to Judges to Use More ‘Discretion’

Hochul has long said that she wishes to offer judges more “discretion” to incarcerate people pretrial. The new legislation would introduce that word into bail law for the first time. It states that, for bail-eligible cases, the appropriate pretrial conditions are a matter “within the discretion of the court.”

In other places, the legislation would eliminate release as the default pretrial condition. Whereas current law mandates that judges release someone “unless it is demonstrated” that bail, jail, or other conditions are necessary, the budget agreement offers no presumptive condition that judges must start with.

Despite these changes, the law keeps in place the foundational tenet of New York bail law that judges only consider what is necessary to get someone back to court when deciding what pretrial conditions to set.

So what does it mean to give judges discretion, if they’re still strictly limited in what they can consider? Experts say it’s more of a general signal to judges than a clear change in the law.

“The message to the court is, the first consideration doesn’t necessarily have to be release,” said Rodriguez. “It’s a very nuanced distinction — but one that might influence judge’s ultimate decisions on these cases.”

That ambiguity could work at cross purposes with the other reason Hochul has repeatedly given for wanting to revise the state’s bail law: to make it less confusing.

Swap Out the ‘Least Restrictive’ Standard

This was the only aspect of the agreement the governor’s team mentioned last week: For bail considerations, the budget would swap out what is known as New York’s “least restrictive” standard. While current law states that judges must set the “least restrictive” pretrial conditions necessary to ensure that defendants return to court, the new agreement would instruct them to set the “kind and degree of control or restriction necessary” to get them to show up. While some judges could interpret that as a greenlight to impose harsher release conditions on defendants, legally speaking, it’s mostly a distinction without a difference.

The original measure Hochul proposed in February, by contrast, would have upended the way judges are instructed to make bail decisions. Instead of only considering what is necessary to ensure that defendants “return to court,” as has been New York law for decades, it would have opened a backdoor for judges to consider perceived “dangerousness,” which law enforcement and tough-on-crime politicians have held as a goal for years.

Many have fixated on the “least restrictive” phrase, but the more essential legal condition is that judges focus on getting defendants back into the courtroom. The budget agreement wouldn’t change that.

Allow Judges to Set Other Conditions if a Defendant Paid Bail

Potentially the biggest surprise of the budget bail agreement is that it would explicitly allow judges to simultaneously set cash bail and non-monetary conditions for pretrial release.

At its heart, cash bail is an incentive to return to court: If a defendant pays bail to win their release from jail, they don’t get that money back unless they come back for future court dates. Traditionally, the law has seen that as enough.

But under the budget agreement, judges would be able to set additional pretrial conditions — like electronic monitoring, pretrial supervision, or something else — if a defendant is released from jail because they paid their bail.

Some judges already set other conditions in conjunction with cash bail, but it’s unclear whether the law permitted it, according to experts.

Allow Defendants to Apply for Reduced Bail

The budget agreement would also make clear that people can apply for reduced bail if they can’t afford to pay what the judge set. Defense lawyers in many jurisdictions already apply for bail reductions, but the current law only specifies that jailed defendants can ask for non-bail conditions (or cash bail if they were sent straight to jail).

The agreement also mandates that, if a prosecutor drops one or some charges against someone accused of multiple crimes, a judge must issue a new order reconsidering the pretrial conditions necessary based on the updated set of charges.

Allow Judges to Send People to Crisis Stabilization Centers

Finally, the budget agreement will also clarify that judges can order mental health or chemical dependence treatment as a pretrial condition. Many judges also already do this, but the law makes it explicit — and potentially encourages judges to do it more frequently.

It also mentions “crisis stabilization centers” — a new type of facility administered by the Office of Mental Health and Office of Addiction Services and Supports where courts can send people for temporary 24-hour mental health and substance abuse care.