Read the Senate’s Draft Compromise on Bail Reform
State Senate Majority Leader Andrea Stewart-Cousins shakes hands with Governor Kathy Hochul. | Kathy Hochul/Twitter

Read the Senate’s Draft Compromise on Bail Reform

New York Focus obtained and analyzed a proposal presented by Senate leadership to the chamber’s Democratic caucus.

Leadership of the New York State Senate has proposed compromise bail reform legislation that incorporates some aspects of Gov. Hochul’s 10-point public safety plan. The potential compromise would allow judges to issue cash bail in certain cases in which people are accused of new crimes after being released pretrial. It would also offer prosecutors more leeway when providing discovery in court. It would also lower the thresholds for gun trafficking charges, and let courts order mental health assessments for people charged with crimes.

New York Focus obtained a proposal drafted by Senate leadership this weekend and presented to the chamber’s Democratic caucus. The proposal is not final, and on Wednesday evening, the Senate and Assembly Democratic caucuses each met to discuss the issue. (One Assemblymember shared their notes on a proposal presented by Assembly leadership, which appeared to be similar to the Senate proposal.) On Thursday, Senate Deputy Majority Leader Michael Gianaris told New York Focus that “we’re having discussions about making changes” to the draft proposal, and Senator Cordell Cleare said those discussions have included the possibility of removing the section that would make some so-called “repeat offenses” bail-eligible.

According to one researcher’s initial analysis, the Senate’s proposal would likely make fewer than 500 additional cases in New York City eligible for bail each year, compared to around 5,000 additional cases under Hochul’s proposal.

On discovery requirements, meanwhile, defense lawyers argued the proposal would amount to a dramatic rollback of 2019 reforms.

The Scope of the Proposed Changes

Earlier this month, Gov. Kathy Hochul proposed a 10-point “public safety package,” which would reverse elements of New York’s landmark 2019 bail reform law, 2019 discovery reform law, and 2017 Raise the Age law, among other statutes. Here’s how the Senate’s draft compromise compares to Hochul’s proposal.

Bail Reform

On bail reform, Hochul’s plan would allow for judges to set bail in any case where someone is charged with a crime while on release without bail for other charges — what her plan refers to as “repeat offenses.” It would also make certain gun possession crimes bail eligible; allow police to hold people prior to their arraignment if they were arrested for certain gun, hate, and subway crimes; and add what some refer to as a “dangerousness standard”: For the first time in New York, judges would be able to consider a defendant’s criminal history when setting bail for alleged serious offenses.

The Senate’s proposal includes none of these changes wholesale. But it would add two repeat offense provisions that would allow judges to set bail for people who are accused of certain felonies and top-level misdemeanors, released before being arraigned, and then arrested again for a felony or top misdemeanor. It would also allow police to detain such individuals while they wait to be arraigned.

Top-level misdemeanors include crimes like turnstile jumping and theft of less than $1,000.

New York Focus asked Michael Rempel, director of the Data Collaborative for Justice at John Jay College, to analyze the impact of the Senate’s bail reform proposal. According to his preliminary calculations, it would affect one-tenth or fewer the number of cases as Hochul’s.

According to a policy analysis Rempel co-authored based on 2021 data, in New York City, Hochul’s proposed bail reform changes would have resulted in a 17 percent increase in cases eligible for bail — or just over 5,000 annual cases. For her “repeat offenses” proposal specifically, it would affect around 4,800 cases in the city.

The Senate’s repeat offense proposal, on the other hand, would likely make fewer than 500 new cases in the city eligible for bail. “This compromise represents a sizable shrinking of people’s increased exposure to bail were it to pass,” he said.

A large majority of the cases newly made eligible for bail under the Senate’s proposal would be misdemeanors. When judges are allowed to set bail on misdemeanors, upstate judges do so at far higher rates than judges in New York City: Rempel noted that before the 2019 bail reform precluded judges from setting bail in most misdemeanor cases, judges in the city set bail in 8% of misdemeanors, compared to 21% in the suburbs and 29% upstate.

That means that the biggest impact of the Senate’s proposal could be seen upstate. “Of the several hundred potentially impacted cases per year in New York, NYC judges would be likely to avail themselves of the option to set bail in an extremely small fraction of the cases, though in the rest of the state, the possibility of facing bail could be several times greater, based on pre-reform 2019 patterns,” Rempel wrote in an email.

Discovery Reform

In her public safety package, Hochul proposed three significant changes to New York’s discovery law, which dictates the requirements for prosecution and defense lawyers to share evidence with the opposing side during criminal proceedings. In 2019, the legislature passed a controversial reform to the law that significantly expanded the categories of evidence required to be shared, including evidence held by law enforcement agencies.

Hochul’s proposal sought to change the definition of prosecutor “compliance” with discovery regulations from turning over all evidence subject to discovery to only turning over all items “required” to argue the prosecution’s own case. Hochul also sought to exclude traffic infraction cases from discovery requirements. The Senate proposal includes neither of these provisions.

Hochul also proposed creating a new category of exemptions to prosecutors’ discovery obligations: A prosecutor would not be in violation of discovery law if certain documents are “unavailable” and they have put forth “diligent and good faith efforts” to attain them.

The Senate’s proposal likewise allows judges to deem prosecutors’ discovery obligations fulfilled if evidence legally subject to discovery has not been turned over because it is “unavailable.” In the proposal, “unavailable” material would be evidence that has never been in the “possession, custody or control” of prosecutors and that prosecutors have made “a diligent, good faith effort to obtain.”

Defense lawyers raised concerns that the Senate’s language, if it becomes law, could effectively exempt evidence held by law enforcement agencies from discovery requirements, preempting key parts of the 2019 reform.

According to the 2019 law, evidence held by law enforcement is legally seen as being in the possession of prosecutors, meaning that the requirement to share that evidence with defense lawyers applies in full force.

The Senate’s proposal would not change this part of the law. But by allowing prosecutors to claim that evidence is unavailable after “multiple attempts” to obtain it from often-recalcitrant law enforcement agencies, the Senate’s proposal could override the 2019 law, defense lawyers said.

“I worry this new proposal could be interpreted to mean that the prosecution can declare itself ready for trial even if it hasn’t turned over evidence that the police have, so long as the prosecutor can claim they left a couple messages with the police or sent a couple emails and never heard back,” said Sam Feldman, an appellate public defender.

Gun Trafficking

Hochul’s plan would lower the threshold for gun trafficking charges: One would be guilty of second degree gun trafficking for illegally giving away or selling two or more guns in a year (down from five), and first degree gun trafficking for giving or selling three guns in a year (down from 10).

Here, the Senate offers a compromise by splitting the possible charges: Second degree gun trafficking for illegally giving away five guns or selling two, and first degree for giving away 10 or selling three.

Additionally, in New York, a person is presumed to be possessing guns with intent to sell them if they have five or more. Hochul wanted to reduce that number to three. The Senate’s proposal includes that same provision.

Mental Health and Involuntary Commitment

Hochul’s plan included an expansion of Kendra’s Law, which, among other provisions, allows the state to involuntarily commit people to inpatient mental health treatment if a court finds that they pose a “substantial” risk of harming themselves or others.

Under Hochul’s plan, the state could also involuntarily commit those who appear to lack “significant capacity” to feed, clothe, or otherwise take care of themselves, or to “accept” help. The governor has said the expansion would help address “the acute needs of the seriously mentally ill.” Critics, like Assemblymember Jessica González-Rojas, characterized the proposal as “criminalization” of mental illness.

The Senate’s proposal takes a different approach from Hochul’s: It would add new subsections to criminal law, which would allow a court to order a mental health assessment — which could still result in involuntary commitment — as a condition of pretrial release for people accused of crimes.

Reactions

Criminal justice reform advocates have criticized the Senate’s proposal.

“For months, the New York State Senate pledged to defend the long overdue and historic reforms to New York’s bail and discovery statutes. Now, contrary to all evidence, Majority Leader Stewart-Cousins and her conference have proposed changes that would completely gut pretrial reforms and lead to the caging of poor Black and Latinx New Yorkers accused, but not convicted of, low-level misdemeanors,” the Legal Aid Society wrote in a statement.

Expanding judges’ ability to set bail would fuel the ongoing crisis at Rikers and upstate jails, critics said. “This proposal targets, specifically, some of the State’s most vulnerable people for whom jails have proven both deadly and completely ineffective at addressing any underlying issues,” said Nick Encalada-Malinowski, civil rights campaign director at VOCAL-NY.

Legislators were largely unwilling to comment on the record, noting that the draft proposal is still being debated in both the Assembly and Senate. “It’s a conversation that needs to continue to happen over the weekend. I’m not going to do it over the press,” said Senator Jessica Ramos.

When questioned by reporters outside her office, Senate Majority Leader Andrea Stewart-Cousins said the Senate would continue to defend bail reform and hold firm against a dangerousness standard, but would entertain some changes.

“People, there is a national spike in crime,” Stewart-Cousins said. “We realize that. We’ve been very concerned about gun trafficking. We’ve been very concerned about repeat offenders. We know what you’ve been concerned about.”