The most divisive issue in Albany is hardly a new one.
In 2019, New York changed its laws so that fewer people arrested would languish in jail because they could not afford bail. A backlash led to a series of tweaks intended to toughen the law. Soon after, a pandemic-era rise in gun crime began.
Gov. Kathy Hochul has now proposed a broad set of alterations to the state’s bail laws in her budget that would expand judicial discretion and effectively increase the number of crimes eligible for bail. The proposals have made many Democratic lawmakers furious: Assemblywoman Latrice Walker of Brooklyn is on a hunger strike to protest the governor’s plan.
Ms. Hochul has sought to portray her changes as targeted fixes rather than a full rollback. “Blaming bail reform for the increase in violence that cities across America are facing is not fair and is not supported by the data,” she said in an op-ed published in The Daily News and co-written with her lieutenant governor, Brian Benjamin. Nonetheless, the two leaders said, the laws still needed changing
They cited rates of repeated offenses that they said were unacceptable, adding: “These repeat offender rates were a failure before bail reform, and they remain a failure today.”
The question of whether to revisit bail reforms has consumed the political conversations around crime for months, overshadowing negotiations over the state budget as the April 1 deadline approaches. Here is a look at some key issues and questions.
A quick primer on how bail works in New York.
Judges in criminal court have three options: They can set bail; they can order that defendants be released without bail; or they can order them to be detained. When bail is set, those who can pay are released to await trial; those who can not remain in jail. Once a case reaches its conclusion, bail money is returned.
In New York, unlike every other state, judges can only use bail as a tool to ensure that defendants return to court. They can not take into consideration the harm a defendant may pose to others.
By the time the 2019 changes went into effect, New York City had already seen a marked decline in the use of cash bail. Between 1987 and 2020, a period in which crime plummeted in New York, the rate at which bail was set fell by 32 percent, according to a report by the New York City Criminal Justice Agency.
The 2019 bail law was built on a new approach: Judicial discretion was tightly controlled, and the ability to set bail was limited to a smaller range of crimes, most of them violent felonies. In addition, judges were instructed to consider a defendant’s ability to pay bail and choose the “least restrictive” means to ensure their return to court.
How did the 2019 changes to bail laws affect New York?
It’s a difficult question to answer. During the pandemic, gun violence went up in cities around the country, and researchers say it is hard to assess the impact of New York State’s bail laws in isolation. Data from New York City offers a mixed picture.
Overall, the rate of those who have been rearrested while they are awaiting trial has been largely unaffected by the changes in the law, according to data from the New York City Criminal Justice Agency. It has held steady at a range of between 3 and 5 percent each month.
But the data is more troubling when it comes to violent crime. Dr. Marie VanNostrand, a scholar of criminal justice systems who has studied New York City’s data, said she has seen an increase in offenses among people who had been released to await trial after being charged with violent felonies.
Judges may set bail for most of these crimes, but their decisions can be based only on ensuring that the defendant returns to court.
Data from the Criminal Justice Agency shows that the number of people who were facing violent felony charges, were released to await trial and then were charged with committing new violent felonies has risen to 320 in the first quarter of 2021, compared with 259 in 2020 and 160 in 2019.
Many law enforcement officials have tied the release of such defendants to the recent uptick in shootings and killings across the state.
But Dr. VanNostrand said that violent crime was increasing across the city and that increases among those awaiting trial did not account for the broader trend.
“The numbers just do not bear out that the crime wave is being driven by people who are on pretrial release,” she said.
State records also show that roughly 80 percent of people released on crimes ineligible for bail do not reoffend. Of those who do, about 2 percent are arrested and charged with violent felonies – a number that translates to hundreds of arrests in the state each year.
That statistic, defenders of the current law argue, shows that the changes in bail law have worked to reduce the number of poor New Yorkers behind bars and did not cause an increase in violent crime.
Here are the key elements of Gov. Hochul’s proposal.
Ms. Hochul wants to allow judges to assess the danger that certain defendants pose to others by considering their criminal history and access to firearms in determining bail.
Public defenders have argued that it is impossible to craft a standard that assesses a defendant’s danger to the community without racial bias, in part because those who live in overpoliced communities of color are more likely to have criminal records, they say.
The notion of dangerousness has been debated in New York since the 1970s and has been consistently rejected for fear that it would reinforce racial disparities in the justice system. Currently, 90 percent of those held in New York City jails are nonwhite.
Although New York is the only state without a so-called dangerousness standard, many say that before the 2019 changes in the law, judges were in fact using bail to detain those they considered a public safety risk.
“They could take a look at your reputation,” he said Oleg Chernyavsky, a commissioner for the New York Police Department, suggested that judges used to apply a “de facto dangerousness standard.”
Now, Mr. Chernyavsky supports Ms. Hochul’s plan to allow judges to formally assess dangerousness in select cases, saying he believes it will increase public safety.
“Boiled down, our position is that there is a small number of people committing the crimes and that the system needs to be calibrated to adjust for those people,” Mr. Chernyavsky said. Public defenders say bail reform is working for 90 percent of people. I’m not here to dispute that. Let’s tweak the law to address those it’s not working for. ”
Another facet of Ms. Hochul’s plan, intended to address repeat offenders, is far more broad. She would make any offense committed while on pretrial release eligible for bail, even a minor crime that would not normally call for an arrest.
“This is going to sweep up quite literally the category of people we did not want to be held with bail for low-level offenses,” said Marie Ndiaye, supervising attorney with the Legal Aid Society. “We’re just criminalizing poverty.”
Others questioned whether the plan would lead to greater public safety in the long run, pointing out that incarceration can increase the likelihood of recidivism. And in New York City, those who are ordered held are sent to Rikers Island, a jail complex in the throes of a crisis, where three men have died already this year.
The governor has other criminal justice proposals.
Ms. Hochul’s criminal justice plan also included changes to the state’s new rules that require prosecutors to turn over all relevant materials to the defense within a tight timeline. Prosecutors across the state have protested the rules, saying they are burdensome and lead to valid cases being dismissed on technical grounds.
Under her new proposal, prosecutors could attest that they are substantially in compliance with the rules. If a judge agrees, a case would move forward even if materials are outstanding.
The proposal would also allow minors charged with gun possession to be tried in criminal court; expand the use of involuntary commitment; and make additional offenses eligible for arrest, rather than a desk appearance ticket. It also proposes increasing funding for pretrial, mental health and employment services.
There’s an April 1 deadline, but only sort of.
In the coming days, lawmakers and the governor will negotiate this and other proposals – from child care and casinos to to-go drinks – as part of New York’s state budget, due April 1.
Both the Senate majority leader, Andrea Stewart-Cousins, and the Assembly speaker, Carl E. Heastie, have defended bail laws. “We are always willing to listen to ideas, but nobody’s going backwards,” Ms. Stewart-Cousins said.
Mr. Heastie said that the governor’s proposal, which he said incorporated “major policy changes,” had come so late in the process that it left little time for careful consideration.
If state leaders do not reach an agreement as part of the budget, they can still hash out a deal later in the legislative session.
“I just do not know if that can be figured out in two days,” he said.