New York Governor Kathy Hochul (D) is holding up the state budget in an effort to force through a rollback of the state’s bail reforms. If Democrats in the legislature concede, it will likely mean that each year, thousands more people arrested on minor charges will be sent to New York’s dangerous and often deadly jails. Hochul’s bid looks like an attempt to burnish her “tough on crime” credentials after scraping reelection in November.
Gov. Hochul and Senate Majority Leader Andrea Stewart-Cousins (D) are “close to a general agreement” on changing the state’s bail laws, Spectrum News 1 reported on April 11. Hochul reportedly wants to remove a provision that instructs judges to use the “least restrictive” means of ensuring defendants show up to court, which largely ended cash bail for many charges. Stewart-Cousins suggested that this is really about giving judges more discretion.
The bail conflict has dragged the state budget agreement weeks past its April 1 deadline. Lawmakers have applied temporary extensions to buy more time to negotiate. On April 10, Hochul and the legislature agreed to a seven-day extension to keep state employees paid and agencies functioning.
The cash bail system has long been condemned by advocates and public defenders as discriminatory against people without financial resources—and coercive, allowing prosecutors to pressure people to plead guilty to avoid jail.
In 2019, New York lawmakers approved a reform that prevented judges setting bail for most misdemeanors and nonviolent felonies, including all drug charges. Defendants were instead released on their own recognizance and a promise to appear in court. Judges still had discretion to impose certain restrictions, like on travel or guns. Reporting at the time estimated it would result in 3,800 people being released from jail statewide, besides many more not going to jail in the first place.
But in April 2020—in a last-minute amendment snuck into the must-pass state budget bill—former Governor Andrew Cuomo stripped back some provisions of the reform. This made a dozen additional misdemeanor and felony charges eligible for bail, and allowed bail to be set if a person is rearrested multiple times, or arrested for a felony while on probation or parole. It sets bail if a person is arrested for causing “harm to an identifiable person or property”—which could be applied to something like shoplifting. Cuomo’s move ensured that thousands of more people each year would endure pre-trial detention.
In 2022, lawmakers once again weakened the reform. By then, Hochul had taken over as governor after Cuomo’s disgrace and resignation. In her first state budget as sitting governor, Hochul pushed lawmakers to accept further rollbacks. The changes instructed judges to take certain factors into account—like an accusation that someone seriously harmed another person, or a history of gun use— when deciding to set bail.
“In the last couple years, as different types of crimes made the headlines in tabloids, there was an outcry.”
Media and political pressures were driving the direction of travel.
“In the last couple years, as different types of crimes made the headlines in tabloids, there was an outcry to [for example] make shoplifters eligible for bail, especially if they get rearrested,” Yung-Mi Lee, legal director of the criminal defense practice at Brooklyn Defender Services, told Filter.
Amplified narratives about crime and “public safety” have recently loomed large in high-profile elections around the country, including Mayor Eric Adams’ 2021 campaign in New York City and Hochul’s battle against Republican challenger Lee Zeldin last year.
After winning reelection by under seven points—a narrow margin in the strongly Democratic state—Gov. Hochul is once again targeting the bail reform.
“She’s proposing to remove the standard for bail which is the ‘least restrictive‘ means,” Lee said. “She’s also proposing to take out the [required] purpose of bail, which is to ensure someone’s return to court.”
“Without any guidelines or purpose, judges will be left to set bail,” Lee continued. “If they look at someone and say, I’m not getting a good feeling about this person, they’re going to set bail. [They] don’t have to worry about whether they will return to court, it could be for another reason.”
The likely result of thousands of extra people going to jail each year—not convicted on any charges, and presumed innocent—includes devastating disparities by race and income. Black and Latinx New Yorkers are already five times likelier than their white peers to go to pretrial detention, and residents in lower income-counties are more impacted.
Any stay in jail can be enough to drastically alter a person’s life. It prevents work or school attendance, costs important medical appointments, and can even mean someone losing their home. And then there are the horrendous conditions in New York City’s jails—where more people died last year awaiting sentencing than were executed in the entire country.
“I hope the legislators will stay strong and keep fighting this.”
“With no limitation in terms of the standard where the judge should be able to figure out what should [they] do, what conditions can [they] impose and what amount of monetary bail is appropriate to get this person back to court, all bets are off,” Lee said. “Judges can basically set incredibly high bail amounts because there’s no standard for them to follow anymore.”
At a time when Democrats control the governor’s mansion and both houses of the New York legislature, it’s unclear how many will stand up for the state’s most vulnerable communities. But earlier this month, Assemblymember Latrice Walker (D-Brooklyn), who helped champion the 2019 bail reforms, began a hunger strike to protest the Hochul’s proposal.
“I think most legislators who’ve been in this battle before understand how serious the implications are if the governor’s proposal were to pass,” Lee said. “I’m hopeful there will be [resistance], because this will affect thousands of lives. I hope the legislators will stay strong and keep fighting this.”
Photograph of Gov. Hochul by US Department of Labor via Flickr/Creative Commons 2.0