A victory, or half of one

The question that lingers behind the just-finished robust state budget process that went deep into overtime is whether Gov. Kathy Hochul earned herself a victory lap for how it turned out.

It’s not an easy one to answer. She insists she does, predictably, just as the once and future head of the state Republican party, Ed Cox, and other backbenchers pooh-pooh her solid movement on the signature issue she sought to redress — bail reform, yet again — as nothing but “window dressing.” They’re both wrong, although he more than she.

True, she only got half of what she wanted out of reforming bail reform this session, which was getting considerably more discretion for judges in setting bail. She did not get the removal of language in the law that limits bail as solely for the purpose of assuring the reappearance of an accused. Had she gotten it, judges would have been overtly able to set bail or remand for virtually any reason, and the need to consider a person as a danger to himself would disappear, become moot. Right now, considering dangerousness is expressly forbidden. Even though every other state and the federal government allows dangerousness to be considered for pretrial detention. And yes, they have it right and we have it wrong and it ought to be changed. But that is the Legislature’s job and they are deeply disinclined.

However, what she did get is a level of judicial discretion for setting bail that comes quite close to what it was when progressive legislators upended bail laws in 2019. So at least now a centrist state begins to swing back to the center, balancing the rights of the accused and the rights of a frightened and afflicted society. Kudos to Hochul for getting us mostly back on track. Make no mistake, though: Her political life remains on the line over it, and we aren’t entirely there yet.

Truth is, this is about as far as she could get this year, no matter how long the complex budget process was held hostage. The Legislature was simply not going to give in on dangerousness, and multiple other issues screamed out for attention.

So it’s not over by a long shot, although all parties, especially the governor, would dearly like it to be. For one, after three rounds of reforming bail reform we are still left with an ambiguous law. As noted, dangerousness can’t be considered, but at the same time judges can use a litany of other considerations approved in last year’s reforms, such as a history of violence, use of guns and so on that in the aggregate amount to the same thing. This is another back-door, indirect approach, similar to the one judges used in New York for nearly 50 years prior to the 2019 reform bill, which by practice and tradition gave them broad discretion in what to consider concerning flight risk. After all, a person perceived as dangerous is logically also more of a risk not to return for a court date.

Judges have gotten some clarity back, but ambiguity remains. Let’s see how they respond in practice. I have a hunch the business at hand is unfinished.

A sequence of events must now take place, though, before Hochul or anyone else can even

think about diving in for another round: It includes reevaluating the changes needed to discovery laws and another look at how Raise the Age is playing out in real time, among other things. Public safety will always be a work in progress, both in shaping perception and in reacting to real events.

Assemblymember Latrice Walker, a Brooklyn attorney, is one of the architects of the state’s 2019 bail reform act and remains one of its greatest advocates, even as it gets whittled down to meet the harsh lessons of the streets. She is an impressive individual, a genuine New Yorker with a passion for her cause. She has been on two hunger strikes trying to stave off changes. I am an unabashed fan, even though we are on opposite sides here. In a recent City and State interview, Walker made it clear the next step for her and like-minded colleagues is litigation, challenging the constitutionality of the recent enacted bail reforms.

She cites a Rehnquist-era Supreme Court decision, United States v. Salerno, that set the standard for pretrial detention that she believes is violated by dropping the “least restrictive” standard. Ironically, this is the same decision that affirmed the federal right to pretrial detention of an accused judicially deemed dangerous, elevating community safety over an individual’s liberty interest. Walker also mentioned there will be challenges in other states over bail as well.

Additionally, it’s important to see how the public reacts, or doesn’t, to the changes in bail reform just passed, and whether the governor can sell what she got through as significant enough to turn public opinion. A tall order.

Which brings us back to the question of a victory lap. Premature perhaps. Better to make a brief appearance at the balcony, wave to us rabble, and call it a day. Maybe next year.