REPORT: 2023 Amendments to New York Bail Reform Provides Judges More Discretion

By Ramneet Singh

NEW YORK, NY – The Data Collaborative for Justice provided a breakdown of recent amendments to a 2019 New York state bail reform, which appears to give judges more discretion on pretrial-related decisions.

The report by Krystal Rodriguez & Michael Rempel concerns the most recent amendments to 2019 bail reform, outlined in Gov. Kathy Hochul’s state budget for next year. The reform went into effect in 2020.

The Data Collaborative for Justice also put out a bench card for these amendments.

The report opens with a history of the 2019 reform, the first of its kind in the state in decades, which “limited the use of cash bail and pretrial detention mainly to violent felony offenses; established a presumption of release on recognizance for all cases except when a ‘risk of flight’ is present; and required consideration of people’s ‘individual financial circumstances’ when contemplating bail.”

The report outlines 2020 amendments increased the number of charges eligible for cash bail and pretrial detention, including “making individuals charged with an offense alleging ‘harm to an identifiable person or property’ eligible for bail if they already had a pending case meeting the same criteria.”

In 2022, the report adds, gun charges were added to eligible cases and clarified shoplifting in this context.

The report goes on to detail the 2023 amendments.

The amendments altered the language of the “‘least restrictive condition’ standard,” noting “judges may interpret that if a less restrictive condition is sufficient to achieve the individual’s return to court, the more restrictive options of bail or pretrial detention are unnecessary and, accordingly, may not be imposed.”

It applies to all criminal cases, said the report, adding “in cases for which cash bail is not permitted, courts no longer must set the ‘least restrictive’ of possible non-monetary conditions” within reason.

Given the room for interpretation, the report argues this may entail “more onerous conditions” depending on the judge and the case.

The amendments concerned release on recognizance, impacting its “general applicability.” The standard appears to still apply to bail-ineligible cases, the report suggests.

However, in bail-eligible cases, “judges do not have to begin from a default presumption of release on recognizance that must be overcome through evidence of a flight risk before pretrial conditions may even be considered,” according to the report.

The amendments, the report said, also involved “explicitly allowing courts to order both cash bail and non-monetary conditions on the same case,” adding this may increase the use of that combination and potentially lower bail amounts due to the certainty of other factors.

These measures relate to the report’s later explanation of what judges may do in cases of non-compliance, the report notes, discussing how the 2023 amendments add to the 2020 amendments in specifying mental health services. Although, the impact of this is unclear.

The report said initial reform required reporting, but “the 2023 amendments introduced a new requirement that OCA provide monthly data on pretrial jail commitments, including breakdowns by county, age, gender, race, ethnicity, top arrest and arraignment charge, whether the jail admission stemmed from an inability to pay bail or a remand order, and any prior release from jail on the current case.”

There is an additional requirement for those discharged before trial.

The report discusses potential provisions that did not change, using as an example, “Governor Hochul did not seek, and legislators did not approve, changes to the charges or circumstances distinguishing cases legally eligible and ineligible for bail. Cases for which bail and pretrial detention were flatly off-limits remain so.”

The report concludes with a discussion of the role judges have moving forward.

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