New York Will Toughen Contentious Bail Law to Give Judges More Discretion

ALBANY, NY — It was just four years ago that New York’s Democratic lawmakers celebrated a new law that eliminated bail for most misdemeanors and nonviolent felonies and, at the time, seemed to add a measure of new justice to a system long faulted for pre-emptively punishing the poor.

On Thursday night, however, after months of grueling negotiations, Gov. Kathy Hochul announced that the state would scale back those changes — for the third time — after a sharp rebuke from New York’s voters and residents over a rise in crime.

“It was very clear that changes needed to be made,” the governor said.

The precise details are unknown — the law is still being drafted as part of the state budget that is expected to be ratified next week — but Ms. Hochul said that she and the Legislature intend to eliminate a provision that requires judges to prescribe the “least restrictive” means to ensure defendants return to court.

While judges will remain unable to set bail for a vast majority of misdemeanor and nonviolent charges, such a change could still have a dramatic impact, giving judges greater discretion to hold defendants — particularly repeat or serious offenders — before their trials.

A recent Siena College poll found overwhelming support for changes to the state’s bail laws, with more than 70 percent saying judges should have a greater leeway in setting bail for defendants accused of serious crimes. Only 20 percent opposed that idea.

Some efforts to modify bail laws have been derailed even in safely Democratic states like California, where lawmakers overhauled the system in 2018 but failed to pass additional changes last year. Leniency on bail has also become an issue in several recent races for governors, including in Michigan, Colorado and Illinois, where a law ending cash bail, scheduled to take effect in January, is being challenged in the state’s Supreme Court.

The changes outlined by Ms. Hochul was backed by law enforcement officials and prosecutors, including the state district attorneys association, whose president hailed the potential changes on Friday as a victory for public safety.

The governor’s office on Friday pointed to a pair of recent incidents — including the choking death of a 15-year-old and an attempted murder — in which the judge cited the “least restrictive” standard in permitting the pretrial release of defendants. The coming bill is likely to include a new language asking judges to instead consider the “kind or degree of control or restriction necessary” to get defendants to return to court.

How prosecutors would use the new bail standards is difficult to predict, as is whether a lower threshold for imposing bail would result in lower rates of crime. But on Friday, opponents of the change were already suggesting that Ms. Hochul’s plan seemed more like that of a hardened conservative than a freshly elected Democrat.

“She stripped the rights and safety of marginalized communities – no different than what is happening in GOP-held states across the country,” said Jawanza J. Williams, the director of organizing for VOCAL-NY, an activist group that works to lessen mass incarceration. “If this was her flexing her control of the statehouse, it is completely backfired, and constituents are left to pick up the pieces with little hope for progress. Shame on Governor Hochul.”

Still, the proposed changes came after several years — and electoral cycles — in which Ms. Hochul and other Democrats were battered politically over violent crime and faced calls for the state to change the law to better ensure public safety. Last fall, Democrats underperformed expectations in several statewide races and lost four House seats to Republicans, mostly in suburban areas where crime remains a motivating issue.

Ms. Hochul himself narrowly won a full term over her Republican challenger, Lee M. Zeldin, who campaigned on law and order. She signaled her desire for change during her State of the State message in January, suggesting “clarifying bail laws.”

Whether the changes to the governor is proposing will result in more detainees’ immediately spending more time in county jails is unclear. But a change to the “kind or degree of control or restriction necessary” language would be a return to the language that was in place before the 2019 overhaul, said Michael Rempel, director of Data Collaborative for Justice at John Jay College of Criminal Justice.

Mr. Rempel believes that even if that language holds, it is unlikely to significantly change the way things are set across the country. However, “at the margins, some judges may use this somewhat less clear language to set good in cases where they would not have previously,” he said.

Jullian Harris-Calvin, a program director with the Vera Institute of Justice, a group that works to reform criminal justice systems, noted that judges already have a raft of tools at their disposal to compel defendants to return to court — including curfews, daily check -ins and electronic monitoring — that is less disruptive than jail.

“The judge can really, for the most part, come up with conditions that they think this person needs to comply with in order to remain stable,” she said.

In remarks at the State Capitol on Thursday night, Ms. Hochul insisted that “overall good reform was needed,” argued that “no one, regardless of money, should be incarcerated because they don’t have enough.” But she said she was motivated by increasing recidivism for some serious crimes, citing data from the State Division of Criminal Justice Services, as well as her belief that “judges should have more authority to set bail and detain dangerous defendants.”

Proponents of the 2019 law argue that studies have found that neither increased recidivism nor crime was linked to it. They suggest instead that fear-mongering and political calculations are guiding lawmakers’ thinking.

“Enacting laws in reaction to isolated cases and scary headlines that are often inaccurate is not the way to make public policy,” said Laura Pitter, the deputy director of the US Program at Human Rights Watch.

Still, Ms. Hochul seems to have won support from Democratic leaders in both the Assembly and the Senate, which each have large numbers of favored progressives, as well as from prosecutors.

“I think it’s important and absolutely necessary to return discretion,” said J. Anthony Jordan, the district attorney in Washington County, a rural enclave northeast of Albany, who leads the state district attorneys association. “No two cases are the same. No two accused individuals appearing in front of the court are the same. And so to allow judges the flexibility to address each case appropriately is important.”

The 2019 law came after years of building support for changes in the good system, a cause crystallized by the case of a Bronx teenager named Kalief Browder, who spent three years on Rikers Island because his family could not raise $3,000 after his arrest on charges of stealing a backpack. That charge was later dropped for lack of evidence, but Mr. Browder eventually took his own life.

The initial changes in New York came in the wake of similar efforts in California and New Jersey and eliminated cash bail for most misdemeanors and nonviolent fellows, a change that affected thousands of defendants. For proponents, the changes offered the promise of new stability for communities decided by decades of incarceration. But the changes were contested by law enforcement even before they took effect at the beginning of 2020.

On Friday, many of the same groups that hailed the law in 2019 — including Mr. Browder’s family — were crestfallen by the proposed changes.

“It would be unconscionable to send more people to these deadly jails,” said Akeem Browder, Kalief’s brother, “by weakening the bail laws passed in Kalief’s name.”

For his part, Mr. Jordan said he believed that, “as important as it is to protect victims in society, it’s also equally important to protect the accused,” noting a major difference between someone who shoplifts a candy bar and someone who commits a more serious crime.

“Finding how we sit in that middle ground — that’s been where the problem has lied,” he said. “And I think that’s what ought to be addressed. And hopefully gets addressed.”

Karen Zrack contributed reporting.

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