ALBANY — A fraction of the criminal cases that would have been impacted by Gov. Kathy Hochul's initial proposal to alter the state's bail laws will end up being affected by the final product.
The end result — passed over the weekend as part of the state budget — comes after weeks of pushback from advocates for preserving the state's 2019 criminal justice changes; they remain frustrated with the process and its conclusion.
Among the changes approved in the budget, lawmakers agreed to make it clear to judges that if someone is accused of petty theft while they already have an open criminal case, a judge can consider setting bail. But if the alleged crime is "negligible" and not a part of other criminal activity, then the judge must release the accused — which appears to be what Hochul was referring to when she said there will be "limited exceptions for crimes of poverty."
Although state law notes the cost of bail should not be a hardship to a person facing charges, data shows the expense often keeps individuals behind bars prior to conviction.
Hochul opened the negotiations with a proposal to allow a judge to set bail on anyone charged with a crime while awaiting the conclusion of their trial for another case. The intention, according to a senior administration official, was to encourage a policy of deterrence that the governor believes could help reduce crime.
Experts say the changes lawmakers agreed to could result in fewer than a thousand additional instances per year in which someone will face the likelihood of potential jail time prior to a judge ruling on their court case. That's roughly 10 percent of the number that would have been impacted by the governor's original proposal.
The result may not have the effect state officials are looking for, according to Michael Rempel, director of the Data Collaborative for Justice at John Jay College of Criminal Justice.
"If the goal was to target individuals repeatedly arrested over a short period of time and reduce that cycle in future, short-term jail is the wrong way to accomplish that outcome," Rempel said.
He noted that when a person charged with a misdemeanor such as petty theft is sent for pretrial detention to a place like Rikers Island, they typically become more and not less likely to be charged with an additional crime in the near future when they are let out.
Rempel previously headed the Center for Court Innovation, which works with the state Office of Court Administration on research, and has overseen much of the center's research on recidivism rates.
He said the newly enacted changed were likely to have an "exceptionally modest" impact on the volume of cases moving through the system — in New York City, about 500 cases.
"We're not here to undo the progress that was made in the past," Hochul said Thursday when rolling out the state's budget agreement. "But I also said we have to realize there are areas where improvements can and need to be made."
Hochul touted the fact the state was going to "close loopholes," especially around gun-related crimes that previously were not automatically bail-eligible. Those cases account for a sliver of the total alleged crimes committed in a year and relate to only 29 instances of a person re-arrested for a violent felony while awaiting the conclusion of their case.
State Republicans, particularly in the final days of budget talks, said that Hochul and her fellow Democrats would try to take a political win for an end result that they said would not substantially reduce crime.
“She’s going to declare that she’s saved us all,” GOP Chairman Nick Langworthy said at a news conference in Albany last month. “And we all know that’s nonsense.”
Long Island Democrats, from the party's moderate suburban wing, generally came out in support of Hochul's bail proposals ahead of a potentially challenging election season that's likely to be centered around public safety.
Other changes were made to the law to clearly allow judges to consider factors like a defendant's "activities and history" in instances when they already have the ability to set bail. It's intended to "clarify" the bail law, the administration said.
Judges set bail about a third of the time, according to state statistics. Prosecutors argued it is in part because of a "least restrictive" standard that could guide the judge toward releasing a person while they await trial even though the case is bail-eligible. The change could lead to an expansion of the use of bail by judges.
State officials agreed to walk back some of its changes to the state's discovery laws, which get less public attention but were often a key concern for prosecutors who were pushing for alterations. The law is intended to address cases facing "automatic dismissal" due to the prosecution failing to turn over evidence fast enough for a speedy trial.
The state chose to spend $15 million on funding pretrial release programs in the $220 billion budget.
Violent felony re-arrest rates are highest among the pretrial release population, according to state data, although research prior to the changes in the state's bail laws show it had beneficial effects. The research has generally focused on New York City, which funds pretrial release programs.
It also chose to spend $65 million on discovery implementation, including money toward digitizing the process for quicker work, according to the governor's office.
An additional $227 million is going toward gun violence intervention efforts to try to try to stop crime before it happens.
Critics of the new provisions remained upset even with the pruned-back package.
"It is cruel to say, 'I will give you housing — but only in jail. I will treat your mental health — but only in jail. I will feed you — but only in jail.' Pretrial incarceration is not the answer," Assemblywoman Latrice Walker, D-Brooklyn, said on the chamber floor during a budget debate. "I want public safety, but not at the expense of our civil rights."
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