Contrary to Hochul’s stated plan, bail reform rollbacks apply to low level offenses

Tension over further rollbacks to the 2019 bail reform law was one of the most controversial sticking points of budget negotiations between the governor and legislative leaders this year. In the end, Gov. Kathy Hochul succeeded in eliminating the requirement that judges impose the “least restrictive means” to ensure defendants’ return to court when setting bail. From now on, judges will only have to “consider the kind and degree of control or restriction necessary to reasonably assure” a defendant’s return to court.

The Legislature introduced the revised budget language about bail on Monday night, which removed the least restrictive standard for all offenses – not just serious felonies eligible for bail. “What we're looking to give is the courts more autonomy in deciding the conditions for the kind of degree of control that is necessary to return to the court,” Hochul told reporters on Tuesday. 

The removal of the “least restrictive means” standard for non-bail-eligible offenses represented something of a shift for Hochul. She had previously pledged that any changes to the bail laws would only impact people accused of more serious crimes, not lower-level offenses. Her initial executive budget proposal left in place the “least restrictive means” standard for those lower-level offenses. 

According to the governor, the change is meant to allow more defendants to access pretrial services including substance use. “This was what was not happening – we weren’t having people being sent to programs that would help them rehabilitate,” Hochul said. To get people more pretrial services, she argued that judges needed greater discretion in all cases, not just when setting bail. The new language in the bail law makes explicit reference to different types of services that a judge can direct a defendant to when determining non-monetary conditions,  including “mental health and chemical dependence treatment.”  It also allows judges to send defendants to a “crisis stabilization center.” 

But Eli Northrup, the policy director of the Criminal Defense Practice at the Bronx Defenders, called the change “a solution in search of a problem.” He argued that judges already have discretion under the existing law to grant defendants access to pretrial services and that the proposed changes will only complicate matters further. 

The state is expected to provide $20 million in funding for nonprofit and government-operated programs providing pretrial services and supervision as part of the final state budget. However, pretrial services such as supervised release programs have struggled to keep up with increased demands since the elimination of bail in most criminal cases.

Asked about the agreed-upon changes to the bail law, specifically the shift to remove the “least restrictive” standard for all offenses, Assembly Speaker Carl Heastie said that he did not believe the governor’s position had changed. (It’s unclear whether this is actually the case; Hochul’s original proposal explicitly left non-bail eligible offenses alone, although Northrup said it was poorly written and led to some confusion over the scope of her plan.) 

Heastie described the tweaks to the bail law as relatively minor, especially in light of changes Hochul originally sought. “When you look at the words ‘least restrictive’ versus ‘degree and control,’ even some of the defense groups didn’t think that that was the toughest part of what she was requesting,” Heastie said. 

As City & State previously reported, the governor initially proposed entirely removing the language specifying that judges may only set cash bail to ensure a defendant’s return to court, which could have allowed judges to jail people they considered “dangerous” even if doing so was not necessary to ensure their return to court. Legal experts warned that this would fundamentally change the definition of bail and enable judges to lock up more people before trial.

Heastie also expressed optimism that new data collection requirements about pretrial detention will help better inform discussions around bail in the future. “Part of this is having data collected to keep track of these changes so we don’t have to keep making these decisions every year, blaming bail for everything,” Heastie said. Under the new budget proposal, the chief administrator of the court system must produce a monthly report on the data collected about pretrial detention.

In an interview with City & State, New York Civil Liberties Union Policy Counsel Jared Trujillo said the changes to the state’s bail laws and the process for making changes were problematic. “The budget process did not need to be this secretive. With this budget, the legislature is expected to vote on this at any moment and no one really saw the language,” Trujillo said, while asserting the governor always intended to remove the “least restrictive means” standard for all offenses. 

Last week, the New York Civil Liberties Union also issued a statement condemning the changes, while alleging the governor had prioritized “fear over facts” with the changes to bail reform this year. Many other criminal justice reform groups put out similar statements condemning the changes, with some calling on lawmakers to vote “no” on the bill containing the bail language.

The revised bail language is the culmination of more than a month of sometimes tense budget negotiations. Hochul initially drew a line in the sand in negotiation on bail reform. Hochul and the legislative leaders came to a conceptual agreement on bail reform last week, confirming City & State’s reporting on the tentative agreement that involved removing the “least restrictive standard”. “It gives judges more discretion they need to hold violent criminals accountable while still holding a commitment to a justice that is fair and accessible to all,” Hochul said of the changes to the bail law, during a press conference. The governor also cited media coverage of violence as one of her motivators for wanting to implement rollbacks to the state’s bail reform laws.