New York state law professors reject Kathy Hochul’s proposed bail reform in open letter

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Over 100 law professors from every law school in New York state, including Syracuse University’s College of Law, signed an open letter released Tuesday rejecting Gov. Kathy Hochul’s proposed changes to the state’s current bail reform law.

The letter addressed to Hochul — as well as New York State Senate President and Majority Leader Hon. Andrea Stewart-Cousins and Speaker of the New York State Assembly Hon. Carl E. Heastie — contends that Hochul’s plan would “eviscerate” the recognized purpose of bail in New York state, as well as exacerbate racial and wealth disparities in the justice system and eliminate judicial review.

Hochul’s plan, which is part of her FY-2024 budget proposal, aims to replace current state law which compels judges to make pretrial determinations like setting bail based on the standard of “the least restrictive means necessary” to ensure a defendant returns to court. In her 2023 State of the State Book, Hochul takes the position that the current law should account not only for flight risk, but for the danger a defendant poses if released on bail.

The law professors’ open letter argues that Hochul’s plan to eliminate the “least restrictive” standard ignores the breadth of the state’s current law, which accounts for the defendant’s history and the nature of the current allegations. Hochul has taken the position that the current laws result in “finger-pointing” and confusion surrounding cases in which a released defendant commits an additional violent crime.

“Changing our bail law will not automatically bring down crime,” the State of the State Book reads. “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.”

Gary Pieples, the only professor from SU’s College of Law who signed the letter, said Hochul’s plan would regress to a time when judges had complete discretion, before the 1960s when lawmakers began to revise the law. Pieples, who is the director of the Criminal Defense Clinic at SU, emphasized in line with the letter that the sole legal purpose of bail is to ensure the defendant returns to court, and this must remain the standard for evaluation.

“None of these people have been convicted, and they’re being accused of something. Nobody’s determined whether they’ve done it, and the system is based on the belief that all of these folks are innocent until the government can prove otherwise,” Pieples said. “Partly, it’s just undoing that general idea that ‘oh, well, you’re dangerous and we’re going to put you in jail because of that.’”

The letter also argues that the changes would make already significant racial disparities in New York city’s jail admissions worse. In 2021, 59% of Black defendants were admitted on a violent felony charge, compared to the only 5% of white defendants admitted after being charged with a violent felony, according to Data Collaborative for Justice’s February study.

Discretionary calculations of “future dangerousness” expose a risk for race-influenced determinations regarding the defendant’s level of danger posed, the professors’ open letter contends. The letter refers to a 2020 study which determined that when Black people and white people faced identical violent felony charges, New York city judges were 50% more likely to set higher bail for Black people.

“Rather than endeavoring to eradicate continued racial disparities, Governor Hochul’s proposal provides them greater room to flourish,” the open letter reads. “It will come at an immense and highly predictable cost: Black communities, Black families, and Black lives.”

At a March 7 press conference in Rochester, Hochul emphasized that the plan doesn’t intend to eliminate the “least restrictive” standard in non-violent cases, but in serious and violent bail-eligible cases. Hochul has consistently stressed her goal of permanently bringing crime statistics in New York state down over the course of her advocacy for her proposed FY-2024 budget.

The letter also makes the case that the proposed plan would prevent judicial review by removing the ability to reevaluate judges’ decisions against a concrete legal standard to determine potential abuses of discretion. The letter states the plan would result in more people locked up in jail despite their presumed innocence, and Pieples identified that people of color and people of lower economic status will disproportionately make up that category of defendants.

“If you have money, you can make bail. If you don’t have money, you sit in jail. Why do you sit in jail? Because you’re poor,” Pieples said. “I mean, that’s not a fair system, that the reason you’re in jail is because you can’t make your bail — not that you were a danger, not that you were a person we are worried about (not) coming back. It’s because you don’t have money.”

In 2019, New York state passed bail reform which reduced the number of offenses for which courts can enforce bail. The reform fell short of its projected reduction of the state’s pretrial jail population, and since its enactment in 2020, the letter identifies that multiple rounds of rollbacks have increased racial disparities. Further rolling back of the “least restrictive” standard would mean more people subjected to the violent cycle of incarceration, the letter states.

Hochul’s finalized FY-24 budget is due April 1. Amid budget negotiations, the letter encouraged a whole and decisive rejection of the bail law changes, and urged lawmakers to maintain their commitment to fundamental fairness.

“The Governor’s proposal is a political distraction that seeks to satisfy the never-satisfied racist call to incarcerate our way to safety,” the letter reads. “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.”

Asst. News Editor Stephanie Wright contributed to reporting for this article.