Governor Kathy Hochul is once again proposing to give judges more discretion when setting bail.
Hochul announced this policy initiative during her State of the State speech and on Wednesday defended her decision.
“Right now judges have an inconsistency in the law,” Hochul explained. ‘They’re told to consider the least restrictive means, which means least effective means to get them back to show up in court.”
This least restrictive standard that Hochul wants to remove from the law for bail-eligible offenses, sets parameters that judges must follow when deciding bail.
But Hochul and even Mayor Eric Adams have insisted that this has done little to deter repeat offenders.
“Certainly least restrictive means would make sense for first offenders, low level cases,” Hochul said. “But when it comes to people who are repeat offenders, for example, and they have a history, a judge should be able to look at that history and make the determination based on that.”
But bail reform advocates argue that the least restrictive standard already allows judges to look at a person’s criminal history and flight risk.
They also say that this “least-restrictive” standard has been a “well-established United States Supreme Court precedent protecting the presumption of innocence.”
Without this standard, Legal Aid says more people will end up in jail before they are convicted of any crime.
“Setting bail is to prevent people from fleeing to avoid prosecution,” Arielle Reid, a Decarceration Project, Supervising Attorney for Legal Aid Society explained. “Legislators need to start investing in solutions that are shown to help.”
This proposal has been made before, but has been met with strong roadblocks in the state legislature.
While some lawmakers have expressed a willingness to change the law behind closed doors, many have refrained from making their concerns public since this issue has become so controversial.
Democratic State Senator James Skoufis is one of a handful of Democrats who has been vocal about the need for changes to cashless bail.
“When I go up to Albany and I say, well we should revisit bail reform and do X, Y and Z, half of the people in the room with me who are Democrats want to chop my head off,” Senator Skoufis said.
Skoufis insists that there can be other guardrails in place to be sure there is not discrimination when judges make bail determinations.
“That might mean for example, monitoring judges and having an independent evaluator at the end of the year, at the end of the month, come in and literally case by case look and examine how do these judges treat people with these demographics,” Skoufis explained.
Bail reform took effect in 2020 and since then changes have been made to the law twice.
But Alana Sivin, a FWD.us New York Policy and Research Manager says this time around they are hopeful that the Leaders in both houses will not be pressured to make changes to the law.
“Focusing on bail reform, it’s really a distraction away from addressing crime,” Sivin said. “And that means focusing on proven solutions. Again, bail reform is not leading to a rise in crime.”
Governor Hochul did confirm that she will be negotiating these changes as part of the budget process in March.
This is a time when Hochul has the most bargaining power during the legislative session and the past two times bail reform was changed was in the budget.
This practice of pushing through controversial policy items during budget negotiations is a common tactic for most governors, but has been criticized in the past.