Those who wanted a fundamental change to New York State's bail law expressed their exasperation Tuesday over a missing word: dangerousness.
And those who did not want any change came away displeased over two words taken out of the bail law as part of the New York State Legislature's budget approval: least restrictive.
Judges no longer will be required to use the “least restrictive” means to make sure a person charged with a crime returns to court.
"From our perspective, this is a significant step back," said Kevin M. Stadelmaier of the Erie County Bar Association’s Aid to Indigent Prisoner’s Society and the Erie County Assigned Counsel Program. "It was completely unnecessary, done for absolutely the wrong reasons, and will put more people in jail."
The $229 billion state budget deal was approved by state lawmakers late Tuesday night, more than a month after the deadline for Gov. Kathy Hochul and the State Legislature to finalize the state’s spending plan.
Republican state lawmakers, however, complain judges still cannot weigh the dangerousness of a defendant when deciding whether to keep the person in pre-trial custody or set bail for release.
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"I don't think that there's any substantive change," State Sen. Patrick M. Gallivan of the new language in the bail law.
"I think dangerousness is something that we should trust judges to make a decision on, and they should be able to consider that in their bail consideration," Gallivan said.
New York law provides for bail solely as a means to get a defendant to return to court – nothing else, Gallivan said.
New York remains the only state in the country that does not allow a judge to consider dangerousness and or some measure of public safety in determining whether to set bail or remand an individual, he said.
Two sides of the dangerousness issue emerged during the Senate floor debate over the bail law when Bronx Democrat Jamaal T. Bailey asked Long Island Republican Anthony H. Palumbo "what do you consider to be dangerousness?"
"Dangerousness, I think, is something that is somewhat subjective, in a way that it's an objective standard, but I think it depends on the particular set of facts because facts are different in every single criminal case," Palumbo answered.
"We should not be leaving room for subjective ideals when I as a Black man in America am considered to be dangerous by many," Bailey replied. "So I am not comfortable with the concept of dangerousness, which could be rather nebulous in nature."
Bailey, who answered questions about bail from Republicans on the floor, said the changes give judges "further discretion" to set bail, should they choose to do so, for those facing criminal charges in which bail can be required before their pre-trial release.
Bailey, chairman of the Senate Committee on Codes, made it clear the Senate majority would not pursue "dangerousness" among the criteria for considering bail.
"We have not contemplated dangerousness, and I'm certain that if someone desired to take that up, they could. We are uninterested in taking up the topic of dangerousness."
Any rollback at all on the state's bail law drew fierce opposition from others. Ahead of Tuesday's vote, the New York Civil Liberties Union called any rollback "another backslide on justice" that would cause more New Yorkers "to languish in jail while they await their day in court."
“Bail reform has saved jobs, kept families together, and protected people’s health and lives," said Jared Trujillo, policy counsel for the NYCLU.
“We must break the cycle of retreating from what is right and reversing landmark civil rights progress year after year," Trujillo said. "Lawmakers must protect criminal legal system reforms, listen to communities impacted by mass incarceration, and invest in initiatives and supports that prevent violence from happening in the first place."
The new language in the bail law allows judges to “make an individualized determination” about whether a defendant poses a risk of fleeing prosecution.
A judge would determine “the kind and degree of control or restriction necessary to reasonably assure” the defendant shows up in court again, according to the bill.
"What we're looking to give is the courts more autonomy in deciding the conditions for the kind of degree of control that is necessary to return to the court,” Gov. Kathy Hochul told reporters on Tuesday.
While judges already had the option of referring a defendant for pretrial services, including counseling and treatment, the new legislation specifies that such options include, but are not limited to, mental health and drug treatment.
Judges, too, could order a defendant be held at a hospital under mental hygiene law. The new legislation allows judges to send defendants to crisis stabilization centers.
"We weren't having people being sent to programs that could help them rehabilitate," Hochul said. "They weren't being sent to substance abuse programs. They weren't being sent to anger management programs. They weren't getting that kind of support. So by allowing an individual to go before a judge, the judge can now look at different factors, other ways to have electronic monitoring. So we've opened it up. And what we've opened it up is for the ability for a judge to look at the entirety of the picture of the individual. And there may be ways that this person, if they're not detained or paying bail, that they actually can get services available to them."
State Sen. George Borrello, a Chautauqua County Republican, said the bail law has "transformed our criminal justice system into a dangerous revolving door."
The changes to the bail law approved on Tuesday "are nothing but a shell game that will do nothing to reverse the tide of rising crime," Borrello said. "Ninety percent of crimes are still not eligible for bail. Judges still do not have the discretion they need to hold dangerous individuals, despite rewording of the ‘least restrictive’ standard."