Hochul's Bail Proposal Will Erase Decades-Old Standard, Increase Pretrial Jailing

The Briefing

Governor Kathy Hochul proposed eliminating the “least restrictive means” standard that judges use as a guiding principle in bail-eligible cases in her executive budget, doing away with a standard that has existed for decades in New York law and ensuring more New Yorkers will suffer the dehumanizing and deadly impact of pretrial jailing.

Hochul’s proposal creates more confusion

In her address, Hochul stated she believes there are “inconsistencies” in the law as written, but she has not identified what those inconsistencies are. 

“Judges are telling us that they don’t have the clarity that they need to have when someone’s before them and meets the standards of being bail eligible,” Hochul said this week. 

But instead of clarifying the law, her proposal erases the only clear standard that exists and represents a sea change in how the New York criminal justice system operates.

Bail is meant to ensure someone’s return to court

For decades predating the 2019 bail reform laws, the statutory purpose of bail in New York has been to ensure someone’s return to court. Judges in New York have been constitutionally required to consider the least restrictive means necessary to ensure someone appears for future court dates. The bail reform law did not change how judges made decisions; it simply added language to the law that had been the constitutionally required practice for almost half of a century.  Both before and after 2020, in bail-eligible cases, judges weigh a number of factors to decide whether someone is going to return to court, using the principle of least restrictive means to ensure compliance.

The proposal will create arbitrary and harmful bail decisions

Hochul’s proposal takes away all standards for when a judge can or should set bail.  If passed, Hochul’s proposal would allow a judge to set bail whenever and for whatever reason the judge wanted to. The outcome of the change will be complete arbitrariness. 

Lawmakers and New Yorkers have known for a long time that unfettered judicial discretion leads to unnecessary pretrial jailing and judges openly violating the law by setting bail for someone they subjectively perceive as dangerous “in the guise of concern over the defendant showing up in court.” Broad judicial discretion is exactly why lawmakers passed modest bail reform laws in 2019. Hochul’s proposal is a massive step backward for the health and safety of New Yorkers.  Hochul has fabricated a legal inconsistency for political purposes; her “solution” will cause life-altering problems for thousands of New Yorkers who will suffer from arbitrary bail decisions.

The change will increase pretrial jailing of Black and Latinx New Yorkers

Hochul’s claim that this proposed change will not increase the pretrial incarceration rate defies common sense. When judges have even greater leeway to detain people pretrial, they do. In New York City, judges set bail on nearly half of bail-eligible cases, with some judges setting bail on nearly 80 percent of bail-eligible cases. Two-thirds of people for whom judges set bail were still in jail a week later, subjected to deadly, dangerous conditions. The only reason for Hochul to make this change is to allow judges to jail more people, the vast majority of whom will be young men of color. Black and Latinx people make up nearly 75 percent of the pretrial jail population in New York.

Hochul and lawmakers know that bail reform has nothing to do with crime. Continued time and energy devoted to rehashing a settled debate about the efficacy of pretrial reform distracts from the solutions that work: access to affordable housing, a living wage, health care, re-entry services and community-based violence intervention programs.