How New York changed its bail law

New York avoided making a major change to its system of pre-trial detention in this year’s state budget, with lawmakers instead making tweaks to the bail law that will likely result in more people being held in jail while they await trial. 

New York overhauled its bail law in April 2019, limiting the number of crimes for which judges could set bail – mostly just those to be deemed violent felonies. Everyone else would be released while their cases made their way through court. That change was spearheaded by an aggressive campaign of criminal justice reformers and progressive Democrats. While many supporters, including Gov. Andrew Cuomo and Democratic state Sen. Michael Gianaris, wanted the law to go so far as to eliminate cash bail entirely, less far-reaching language that was enacted still had its intended effect. In the months since it was implemented on Jan. 1, 2020, jail populations have gone down across the state.

These changes were controversial, and the opposition didn’t give up once the state law passed. A tough-on-crime coalition of Republicans, law enforcement, district attorneys and many moderate Democrats agitated for further revisions or an outright repeal, arguing that the law went too far and would result in dangerous criminals walking the streets. When New York City’s crime rate appeared to be rising, the police department and Mayor Bill de Blasio both blamed the state bail reform. Moderate Democratic legislators, particularly in the state Senate, also demanded a fix. Soon enough, both Cuomo and state Senate Majority Leader Andrea Stewart-Cousins were saying that the bail reform they passed the year before needed changes. Assembly Speaker Carl Heastie, who negotiates the budget with Cuomo and Stewart-Cousins, remained opposed to altering last year’s law.

But the governor usually gets what he wants, and sure enough, this year’s state budget, which passed the state Senate and Assembly in early April and was signed by Cuomo on Friday, will roll back some of last year’s bail reforms.

The biggest change is adding to the list of crimes in which judges are allowed to set bail on a defendant or send them straight to jail. There are 15 new bail-eligible categories added to the list:

1. Burglary in the second degree (felony) when charged with entering the living area of a home
2. Sex trafficking or sex trafficking of a child (felonies)
3. Money laundering in support of terrorism in the third or fourth degree (felonies)
4. Promoting an obscene sexual performance by a child (felony)
5. Any crime that is alleged to have caused the death of another person
6. Criminal obstruction of breathing or blood circulation (misdemeanor), strangulation in the second degree (felony) or unlawful imprisonment in the first degree (felony) when committed against a member of the defendant’s family or household
7. Vehicular assault in the first degree and aggravated vehicular assault (felonies)
8. Assault in the third degree (misdemeanor) and arson in the third degree (felony) when charged as a hate crime
9. Aggravated assault upon a person less than 11 years old and criminal possession of a weapon on school grounds (felonies)
10. Grand larceny in the first degree, enterprise corruption and money laundering in the first degree (felonies)
11. Failure to register as a sex offender (felony) or endangering the welfare of a child (misdemeanor) when one is designated a level three sex offender
12. Bail jumping in the third (misdemeanor), second (felony) or first degree (felony) or escape in the third (misdemeanor), second (felony) or first degree (felony)
13. Any felony offense committed while serving a sentence of probation or while released to post-release supervision
14. Any felony committed by a “persistent felony offender”
15. Any felony or class A misdemeanor involving harm to an identifiable person or property committed while charges are pending on another felony or class A misdemeanor involving harm to an identifiable person or property

The law also authorizes judges to impose new conditions on defendants awaiting trial who aren’t jailed, such as requiring them to surrender their passport, or mandating that they refrain from contact with certain victims or witnesses to their alleged crimes. Judges can refer defendants to pretrial service agencies for mandatory treatment or counseling, but the law makes clear that the accused person doesn’t have to pay for any of those services. 

Provisions in last year’s budget enhanced the right to a speedy trial and tilted discovery laws to be more favorable to defendants. The new law rolls that back a little, in response to complaints from prosecutors. Where prosecutors used to have 15 days to perform initial discovery obligations, they now get 20 days if a defendant is incarcerated, and 35 if they’re not. More evidence can be withheld from defendants who are gang-affiliated as well. The law also requires the state to release data on pretrial release and detention every six months. The changes will take effect 90 days after the budget’s passage, or around July 1, 2020. 

For a while, it looked as if the state would go much further with changes to the bail law. A draft proposal being considered in Albany as recently as this week would have completely eliminated the practice of cash bail, but granted judges discretion to consider the “dangerousness” of a defendant when deciding whether they should be sent to jail. Currently, New York judges are only allowed to consider whether a defendant is likely to attend their court dates, and not whether they’re likely to commit more crimes. While it’s widely acknowledged that judges often take public safety into account when setting bail anyway, the criminal and racial justice advocates who helped usher in last year’s bail changes opposed codifying it into law. They argued that such a change would inject judges’ ingrained biases into the system, resulting in more black and Latino defendants being deemed “dangerous” and sent to jail with no way of getting out. Nevertheless, the approach has high-profile supporters, including Cuomo, de Blasio and the District Attorney Association of the State of New York.

With dangerousness being left out of the final bill, it would seem that the progressive criminal justice activists dodged a bullet. But that doesn’t mean they’re happy with the lesser changes.

“Granting judges dangerousness would be the worst possible scenario. But rolling back reform at all during a time like this is really just unconscionable, given that any rollbacks to bail reform will mean more people being held pre-trial,” said Clarise McCants, the criminal justice campaign director at Color of Change, a racial justice organization which opposed any changes to the law. 

“While we can celebrate that it’s not the worst thing we've ever seen, it still does signify a step backwards when we need to be moving forwards,” she said.

Outright praise for the changes to bail law was hard to find. Some of the main critics of last year’s reforms think that the new law doesn’t go nearly far enough to fix it. 

“This approach does not come close to addressing the problems w/ the law. What about serious offenses that didn't make the cut?” the Police Benevolent Association, a union for NYPD officers, tweeted Thursday. “Bottom line: judges still don’t have the discretion to hold many dangerous criminals, regardless of their history, the facts of the case or the threat they pose to the public. This only kicks the can down the road, while more New Yorkers will be unnecessarily victimized.”

The bail changes were controversial among the elected officials in the Democratic-dominated state Legislature as well.  While most bills that make up the budget this year passed on a party-line vote or close to it, the Assembly bill that contained the changes to bail law, A9506-B, passed 76-66, just just one vote over the necessary 75-vote majority. Some 27 Democrats broke with their 105-member conference, and many of them pointed to the rollback of bail reform as the reason. 

The Senate version, S7506-B, passed more comfortably, 35-26, but five Democrats defected from their 40-member conference and voted against the bill, citing, at least in part, the bail law. State Sen. Jessica Ramos, a Democrat from Queens, explained her no vote in a statement on Friday, saying the bill “dramatically rolls back bail reform and will send more New Yorkers to jail at a time when we should reduce our jail population, not expand it.”

But Stewart-Cousins seemed satisfied with the compromise that she reached with the state’s other leaders. 

“We worked to try and strike that balance,” she told City & State after her chamber passed the budget. “We wanted to make sure that certain crimes were certainly bailable offenses …. And I think that we've really taken good steps to make sure that the justice system is just.”