Dozens of law professors challenge gov’s bail proposal
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Governor Kathy Hochul highlights bail reform initiatives at a press conference in the Red Room of the Capitol on March 22, 2023. File photo by Darren McGee/Office of Governor Kathy Hochul
By Ryan Schwach
A group of 100 law professors wrote an open letter to Governor Kathy Hochul this week opposing her proposals to the state’s bail laws, which have already reportedly soured budget negotiations in Albany.
Hochul's proposal would eliminate the "least restrictive means" clause, which requires that during pre-trial proceedings, judges consider the measure that restricts the freedom of the defendant the least. Ultimately, the change would give judges more discretion when considering whether to set bail or not, the governor has argued.
The governor has said that she believes that the clause, which existed prior to the passage of the 2019 bail reforms, has caused confusion among judges, who she says have released defendants without bail because they didn’t know they actually could have set it.
“For serious crimes (those that remain eligible for bail), Governor Hochul believes the ‘least restrictive’ standard should be eliminated,” the policy platform released ahead of her State of the State address reads. “Data from before and after the enactment of bail reform actually shows that eliminating the ‘least restrictive’ standard for bail eligible offenses — while retaining it for less serious crimes — will not increase the overall rate of pretrial incarceration.”
“Of course, we also must understand that changing our bail law will not automatically bring down crime,” the proposal continues. “What it will do is make it crystal clear that judges do, in fact, have the discretion necessary to protect the safety of New Yorkers.”
Detractors of the plan argue that it would give judges more power to impose bail, and thus keep more people in jail pre-trial unfairly, would reinforce the racial disparities that led to the need for the 2019 bail reform laws and could even create more confusion than the governor claims already exists.
“Hochul's proposal to erode bail reform would only further cement the racism and unfairness inherent in the practice of pretrial detention,” said Jocelyn Simonson, a professor and associate dean for research and scholarship at Brooklyn Law School, and one of the over 100 law professors who signed onto the open letter decrying the proposal.
“In part because it's giving even more discretion to judges and taking away some of the backstops against the ability to take for example, future danger into account which is the kind of thing which would absolutely have racial impacts,” Simonson added over the phone to the Eagle. “If we take away those limits, and give judges discretion, we're first of all guaranteeing that more people are going to be locked up pre-trial, just by the nature of what we're doing. And that those decisions are going to be based on the kinds of factors that often have racial discrimination or racial disparities behind them.”
In their letter, the professors argue that the initial, and continuingly controversial, bail reforms passed in 2019 never fully accomplished their intended focus of reversing the racial issues of mass incarceration and an unequal treatment of Black and brown people in the court system.
According to the letter, the initial reforms were expected to result in a 40 percent reduction in New York’s pre-trial jail population, which turned out to be 15 percent in practice in the two years following the laws.
“This underperformance was a political and moral failure,” the letter reads. “Multiple rounds of rollbacks – the first within only four months of the law’s passage – were driven by Willie Horton-esque soundbites based in racist fearmongering rather than fact. As a result, racial disparities in pretrial detention have continued to widen.”
Simonson argued that some of that rhetoric has come from the governor herself.
“It is unacceptable and outrageous for the governor to talk about bail reform and public safety in the way she is,” she said. “In the context of a system that is putting poor people and Black and brown people in the violent cages of our jails. When I hear her speak, I hear her using racialized dog whistles that we shouldn't want to hear from the governor.”
The professors also argue that the proposal would “undo the well-considered and long-standing purpose of bail” and “and is contrary to decades of New York’s refusal to cave to racist and classist ‘tough on crime’ policies in the context of bail and pre-trial detention.”
“The presumption of innocence is the bedrock of our criminal law, yet pretrial incarceration coerces people to plead guilty. Using the least restrictive means to ensure a person’s return to court is a matter of fundamental fairness,” said Martha Grieco, adjunct professor at St. John's University School of Law.
They also argued that in repealing the statute, it would take down any guidance for judges, and in turn make the situation even more complicated.
“Our bail laws are complicated, but judges are professionals who understand how to apply a complicated statute but being complicated is not the same as being confusing,” said Simonson. “The statute is clear about when a case is bail eligible, and what factors to take into account. If it's confusing to have to take into account certain factors then, I mean, that's what judging is right?”
“There would be less guidance and fewer restrictions in a way that opens things up to all kinds of decision making,” she added.
The professors called for a “resolute rejection” of the proposal.
“The proposal must be rejected in whole,” they wrote in their letter. “Only by refusing to cede this high and moral ground can we return to legislating real opportunities to make our communities feel safe and thrive.”
The letter was also addressed to Assembly Speaker Carl Heasite and Senate Majority Leader Andrea Stewart-Cousins, the former of which has been reportedly frustrated by the governor’s insistence on the bail changes in the massive state budget, to the point that negotiations came to a halt over the weekend.
Despite the opposition from the professors and lawmakers – who declined to include the proposal in their proposed budget – a recent Siena College poll found that 76 percent of polled New Yorkers supported the governor’s attempt to include the changes in the budget. Around 19 percent said that they didn’t support the plan.
The state’s budget is due by April 1.
