Media coverage of Governor Hochul’s radical proposal to eliminate the “least restrictive means” standard once again failed to challenge the governor’s illogical and unsubstantiated claims, misleading readers and continuing a pattern of undermining support for a successful policy.
Governor Hochul doubled down on her radical proposal to eliminate the “least restrictive means” standard in bail-eligible cases during a public appearance this week. Media coverage of Hochul’s remarks once again failed to challenge the governor’s illogical and unsubstantiated claims, misleading readers and continuing a pattern of undermining support for a successful policy.
Hochul’s proposal eliminates the only standard that exists when judges are making bail determinations in eligible cases, which will increase bias and confusion. On Tuesday, she claimed that the current system produces “unfairness” because different judges have different philosophical and political positions, before falsely suggesting that her proposal will reduce confusion. Eliminating the standard will force judges to make up the law as they go. There will be no consistency to when bail is set, and there will be no check on judges’ racist decisions.
The issue is clear. There is no inconsistency in the law and no reason judges should be confused about a standard that has existed for decades. Moreover, top court officials told lawmakers at a joint hearing that judges don’t need additional training to understand the state’s bail laws.
Yet a Spectrum News article quoted Hochul without challenging her premises, before editorializing that “ending the least restrictive requirement could make it easier for judges to determine when bail should be required or when a defendant is OK to be released.” This statement is legally incorrect, factually baseless, and ethically irresponsible. Such a claim is a reckless use of the credibility journalists possess when framing statements from public figures.
The article is wrong – eliminating the least restrictive means standard will make it more difficult for judges to do their job because the current standard is the only standard judges can base their decision on. Without the least restrictive means standard, arbitrariness becomes law. The result will be more vulnerable New Yorkers in deadly and dehumanizing jail conditions.
Other coverage of Hochul’s public remarks on Tuesday failed to push back against or explain the obvious contradictions in Hochul’s unsubstantiated claims. Despite clear data pointing to the success of bail reform and a range of voices pushing back against Hochul’s regressive proposals, the media continued to play a major role in misleading the public about bail reform. Keep reading for our February briefing on misleading coverage of Hochul’s proposal.
A February New York Daily News article reports Hochul’s claims about judges’ confusion as fact and legitimizes Hochul’s proposal as a way “to clear up the issue.” Other articles have failed to push back on Hochul’s claim that judges need more “clarity.”
But the issue is clear. There is no reason judges should be confused about a clear and consistent law that has existed for decades. The law clearly states which specific alleged offenses are eligible for bail and remand — it does not use the vague “serious offenses” language that Hochul employs.
Top court officials told lawmakers at a joint hearing this week that judges don’t need additional training to understand the state’s bail laws.
“I don’t think most judges have an issue with understanding the law,” acting Chief Administrative Judge Tamiko Amaker said. “I think that, just like any other area of criminal law, I think you’re going to have divergent opinions, but it doesn’t mean that judges don’t understand or haven’t been taught the law or don’t understand what their options are.”
The law is also clear about dangerousness. Judges cannot remand someone who they perceive to be a danger of committing new offenses. Dangerousness has never been a legal standard to set bail in New York, though some judges have admitted to violating this portion of the law.
The implications of Hochul’s proposal are accurately described in a February New York Daily News article. Hochul’s proposal does not clear up “inconsistencies” in the law. Instead, it eliminates the only standard that exists when judges are making bail determinations in eligible cases, increasing bias and confusion. Hochul is proposing to do away with a decades-old legal standard and upend how bail decisions are made in New York by introducing arbitrariness as the law.
The Daily News article also lifts up the fact that there is no evidence that bail reform has anything to do with increases in crime, something that Hochul knows. But the governor will not stand by that fact and celebrate a policy that has been widely successful.
The reasoning behind Hochul’s proposal is contrived and unsubstantiated. Her proposal does not clear up confusion; it eliminates all standards instructing judges when bail should be set and opens the door to mass pretrial caging. The stakes are high, particularly for Black and Latinx New Yorkers, who make up a disproportionate amount of the pretrial jail population. Media outlets should focus on the incredible success of New York’s bail laws, instead of repeating Hochul’s unsubstantiated claims about the law’s inconsistencies.