Focus back on bail laws
Testimony on data takes center stage ahead of governor’s proposal
ALBANY — Gov. Kathy Hochul’s anticipated proposal to adjust the state’s bail laws in her executive budget this week hung in the backdrop of a full day of testimony at a legislative hearing Monday that was intended to focus on data regarding pretrial detention.
“We’re not asking to gut bail, we’re asking how do we address it in the important questions,” said Washington County District Attorney Tony Jordan, who is the head of the state District Attorneys Association. He was speaking on behalf of Albany County District Attorney David Soares, who was scheduled to speak but did not attend.
New York Police Department leaders who testified noted similar concerns, pointing to roughly 2,000 individuals who they believe have caused an outsized share of the reported crimes in New York City.
“We all want safe streets and making sure that people who commit bad acts are held accountable,” state Sen. Jamaal Bailey, Dbronx, said. “We just want to make sure that the Lady Justice scales are balanced.” Earlier in the month, Hochul offered in her State of the State address potentially expanding the discretion of judges to set bail for people accused of “serious” crimes, including sending someone to jail without bail.
The governor is looking to strip the “least restrictive” standard that has left many judges often releasing individuals who might have been eligible to have bail set, including for certain violent felonies. Public defenders believe the proposed change would conflict with the rights of individuals under the U.S. Constitution. The debate is expected to unfold over the next few months during budget negotiations between the governor and the Legislature.
“The reality for judges and the challenge for all of us today is how do we address the only standard that matters: least restrictive means,” Jordan said.
During Monday’s joint hearing of the Legislature, lawmakers juggled questions on how to interpret the state’s publicly available data without having political influence dictate their respective understanding of the facts.
“There’s no way to decouple the pandemic and the changes that coincided,” Assemblyman Jeffrey Dinowitz, D-bronx, said about the criminal justice changes in 2019.
Dinowitz, chair of the Assembly’s Committee on Codes, underscored the concern lawmakers have debated for the last two-plus years: Did the COVID-19 pandemic contribute to the increase in crime, or was that a result of changes to bail laws that have led to fewer individuals being incarcerated following an arrest and while awaiting trial?
“We’ve seen people point to the same sets of data and draw different conclusions,” Dinowitz said.
Democrats asked the chief of administration at the state Office of Court Administration how it was informing judges to implement the state’s bail laws. That’s because many lawmakers have questioned whether judges are applying the law as the Legislature intended when the statutes, including pretrial discovery of evidence, were retooled.
Justin Barry, the chief of administration, said they had disseminated materials on what alleged offenses would be bail-eligible. He said that it was available to all judges and that nearly all judges received training, although it was not mandatory. When pressed on whether he would release those materials, Barry repeatedly declined.
“Those are internal training materials and not designed to be shared outside of the court system,” Barry said, adding he would consult with counsel to confirm that position.
Barry would later say that he believed judges had different views on how to implement the state’s “harm-toharm” provision.
That standard applies to alleged offenses that harm other individuals, such as domestic violence, or harms property, such as stealing a substantial amount of items from a store. When that “harm-to-harm” provision is met, the Legislature has deemed those types of cases to be “bail eligible” and therefore a judge is intended to have the option to set bail or send the individual to jail.
“The judges have various thoughts about what constitutes harm-on-harm,” Barry said.
Democrats often focused their questions on recidivism rates that have stayed relatively flat since 2019, according to state data, while Republicans raised concern about increases in dismissal rates.
But the NYPD officials who spoke, including Chief Jeffrey Maddrey, pointed to statistics they show soaring rates of shooting incidents among teenagers younger than 18. They said many low-level crimes like petit larceny are also being committed by many of the same individuals.