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Will bail law changes make the New York state budget late again?

Gov. Kathy Hochul presents her fiscal year 2024 executive budget proposal on Feb. 1, 2023, in the Red Room at the State Capitol.
Mike Groll
Office of Gov. Kathy Hochul
Gov. Kathy Hochul presents her fiscal year 2024 executive budget proposal on Feb. 1, 2023, in the Red Room at the State Capitol.

There are many areas of contention between Gov. Kathy Hochul and the Legislature in the New York state budget as the final weeks of negotiations take place.

But the biggest sticking point is likely to be bail reform. Hochul wants to make more changes to the law, which ended most forms of cash bail, and lawmakers are resisting.

The law has been tweaked twice since it was enacted in 2019. Now, Hochul wants to give judges more discretion if they believe that a defendant might be a danger to themselves or others if they are released after being arrested without having to post bond.

She would eliminate a provision of the law, added in 2022, that says judges must consider “the least restrictive means” necessary to ensure that an accused person returns for their court date.

The governor spoke about her proposal recently in Rochester.

“We have this inconsistency in the law. Confusion is understandable, and I want to make sure that we remove that one standard, give them criteria to look at. And I want to make sure that our judges have what they need,” Hochul said. “So, removing the least restrictive means standard for bail-eligible cases, which are the serious violent offenses, is what we're going to be looking for.”

Hochul said the current law leads some judges to interpret the bail reform laws as meaning they can’t hold people pretrial, even for violent charges.

“You can't look at whether or not they're going to go out and hurt someone again,” Hochul said. “Or perhaps kill someone this time.”

Hochul’s bail reform changes are not included in the budget plans released by the Senate and Assembly, where Democrats hold supermajorities. That sets up a potential fight between the governor and the Legislature as the deadline draws near.

Senate Leader Andrea Stewart-Cousins said a March 8 study by CUNY’s John Jay College of Criminal Justice on New York’s bail reform laws shows that recidivism rates for misdemeanors dropped by 50% and by 27% for nonviolent felonies.

“And not only has the recidivism dropped,” Stewart-Cousins said. “You’re not keeping people who can’t pay bail, who have been accused of a misdemeanor in jail, where their entire lives are disrupted.”

Assembly Speaker Carl Heastie said bail reform didn’t cause a crime spike that affected New York and the nation over the past three years, and that’s one reason why the Assembly did not include the changes to the law in its budget proposal.

But he said he understands that people are concerned about crime, whatever the underlying causes.

“Crime statistics are going down, study after study is showing that bail reform is not the driver of crime,” Heastie said. “But we still have a feeling that, you know, people are safe, but I'm still not sure people feel safe. And I think that's something we're still going to have to try to figure out.”

Both the Assembly and Senate budgets increase aid for mental health and other community-based services that can help deter people from committing crimes in the first place.

Hochul’s proposal does have the support of Republicans in the Legislature, who are in the minority party in both houses.

Senate GOP Leader Robert Ortt pointed out that the John Jay study also found that the bail law changes tended to increase recidivism rates of people charged with violent felonies and who had “substantial recent criminal histories,” including those accused of multiple burglaries.

Ortt said judges need to have the power back to hold repeat offenders pretrial.

“To look at someone and say, ‘You've been arrested 10 times in the last two months. I think you're a danger to yourself and the community, I think you should be held.’ That's our position,” Ortt said. “And I would be willing to bet, forgetting John Jay, a study by New York voters and New York residents, would back up our position.”

But Republicans alone can’t provide enough votes for Hochul’s measure to pass.

Hochul, who’s said she prefers the right budget to an on-time budget, appears ready to dig in her heels to get enough Democrats on board to win passage of the latest bail law changes. In 2022, the budget was nine days late as the governor held out for previous changes to the law.

“I’m listening to the voices of New Yorkers,” Hochul told reporters on March 15. “The top two issues are public safety; they support our bail plan.”

She said the second priority is her plan to build 800,000 new housing units over the next several years. Lawmakers have already rejected the key tenets of that plan, leading to another budget fight.

Karen DeWitt is Capitol Bureau chief for the New York Public News Network, composed of a dozen newsrooms across the state. She has covered state government and politics for the network since 1990.