New York’s Bail Laws Are Changing Again. Here’s How. – The New York Times


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Governor Kathy Hochul pushed for a rewrite of the 2019 laws governing the criminal justice system.
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One of the most contentious items in New York’s $220 billion budget deal had little to do with fiscal issues: For the second time, legislators revised laws governing bail for criminal defendants that they had passed just three years ago.
Those measures barred judges from setting bail for defendants charged with less serious crimes; those defendants were released while they awaited trial without posting bail. Another law passed in 2019 also forced prosecutors to meet more stringent requirements for turning over evidence to defense lawyers.
Governor Kathy Hochul, a moderate Democrat, pushed for changes in those laws during an election year marked by rising gun violence.
The New York City mayor, Eric Adams, signaled on Friday that he was not satisfied by the agreement to revise the law reached in Albany last week as part of state budget negotiations, saying in a television interview that it is “only halftime” and “clearly, there’s more to be done.” But some prosecutors in New York City welcomed the changes.
Public defenders have argued that the process was driven by politics and not data. The revised law, they contend, will result in more people being held at Rikers Island — which disproportionately holds people of color and is already in crisis — while public safety will not benefit.
Here’s a guide to the changes and how they were made:
Bail is a sum of money that a defendant posts in exchange for freedom before a trial. It is returned when a case has concluded. New York rewrote bail laws in 2019 so that fewer people awaiting trial landed behind bars because they could not afford to post bail.
Under the legislation, judges were no longer able to set bail for a wide-ranging list of misdemeanors and nonviolent felonies. Those included burglary, stalking, assault without serious injury, many drug offenses and some kinds of arson and robbery. People charged with those offenses were released to await trial, although some were subject to monitoring.
And in cases where bail could be set, the new rules compelled judges to consider a defendant’s ability to pay and to choose the “least restrictive” means necessary to ensure that defendants returned to court.
The new rules were implemented, in part, to prevent low-income defendants from being disproportionately jailed because they could not pay.
But those changes, which took effect in January 2020, were met with fierce backlash from many district attorneys, judges, law enforcement officials and Republicans. Critics, including Dermot F. Shea, the former New York City Police Department commissioner, blamed the legislation for a spate of serious crimes shortly after the new rules went into effect, with little evidence to support that argument.
Supporters of the law noted that crime statistics can change for many reasons, and researchers say that it is difficult to isolate the impact of reforms from the social disruptions caused by the pandemic.
After a wave of criticism from law enforcement officials and Republicans, lawmakers agreed upon an initial set of changes.
Those measures, which passed in April 2020 and took effect that July, added two dozen crimes to the list of serious charges for which a judge could impose cash bail. They included sex trafficking, grand larceny, second-degree burglary, vehicular assault and any crime that results in a death.
The revisions also added conditions under which a judge could consider a defendant’s criminal history in setting bail. Setting bail was allowed for certain “persistent offenders,” for example, or when new felonies were committed by someone on probation or parole, even when the offenses were nonviolent.
Bail became a matter of debate again this year after Mr. Adams unveiled an ambitious public safety plan in January.
In New York, bail is imposed solely to ensure that people return to court; judges are not supposed to set high bail for defendants who they think might be a public safety risk. New York is the only state without a so-called dangerousness standard. Mr. Adams wanted judges to be able to consider a defendant’s dangerousness.
Last month, Ms. Hochul began to push lawmakers to change the law, casting her plan as targeted tweaks rather than wholesale rollbacks. Progressive politicians have disputed that characterization.
Although the changes adopted in the budget are relatively modest compared to those initially proposed, their effect is to give judges more discretion in a few key areas in the criminal process.
While judges still must choose the least restrictive means to ensure a defendant returns to court, and cannot explicitly assess a defendant’s “dangerousness,” they will need to weigh specific factors in setting bail, including whether a defendant is accused of causing “serious harm” to someone and whether a defendant has a history of using or possessing a gun.
The law also expands the number of crimes for which defendants can be required to pay bail, by creating stricter rules for people accused of repeated offenses that harm people or property. Under the new law, bail can be set even for some minor offenses such as shoplifting, if an individual commits more than one such offense in a certain time frame.
In an effort to avoid imprisoning people who have committed crimes of poverty, lawmakers included an exception for thefts that are considered “negligible,” though it is not yet clear how that term will be defined.
The impact of both of these provisions will greatly depend on how judges interpret them, and the degree to which they are seen as an invitation to impose stricter conditions on people awaiting trial.
Judges in New York can already set bail for most gun crimes. The new law adds a few less commonly charged crimes to that list, including the sale of a firearm to a minor.
The law also lowers the threshold required to bring a charge of gun trafficking.
The state’s discovery law — which governs how the prosecution shares evidence with the defense in a case — was rewritten in 2019. Defense attorneys had said that prosecutors were taking too long to turn over crucial facts, leaving defendants to languish for months awaiting trial. The revision required the prosecutors to turn over 21 kinds of material, including all electronically created or stored information pertaining to a case, in a tight time frame, or risk having it dismissed.
The new law preserves this requirement but clarifies the expectations for prosecutors, and it gives judges more discretion over whether a case should be thrown out when deadlines are not met. Ms. Hochul described the changes as being aimed at preventing automatic dismissals of cases when prosecutors operated “in good faith,” even though they failed to make a disclosure.
Jonah E. Bromwich contributed reporting.
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