GOP Senator Seeks Bail Reform Middle Ground
As bail reform takes center stage in state budget discussions, a freshman Republican senator is pitching a novel bail reform idea — a true elimination of bail.
Sen. Jacob Ashby, R-East Greenbush, proposes eliminating bail for all offenses. In its place, Ashby proposes giving judges the ability to consider a defendant’s character, reputation, habits, mental condition, activities and history in deciding whether the person poses a threat to themselves, another person or the community when decided whether or not they should be held on a securing order. He also proposes a Commission on Public Safety Reform to determine which offenses should be eligible for pretrial detention.
“Since New York’s bail reforms took effect at the beginning of 2020, it has been clear that both the lack of planning, training, and support has hamstrung those on the front line implementing said reforms while the actual changes to the system have risked public safety,” Ashby wrote in his legislative justification. “One critical mistake in the reform efforts is that as they sought to limit monetary conditions they failed to consider other factors for determining whether an individual should be detained such as risk to the public’s safety. What was left was a system where judges have two primary options — release an individual on their own recognizance or set limited non-monetary conditions of release (i.e. travel restrictions or maintaining employment). The result of this has been the release of individuals who have gone onto commit crimes, and often more violent crimes. Additionally, the reforms undermine any certainty of punishment for offenders while also undercutting law enforcement officers, prosecutors, and judges. As District Attorney David Soares has recently highlighted, crime rates in the months leading up to COVID were skyrocketing in New York City for crimes that had only just become non-bailable offenses – contributing to a nearly 20 percent rise in crime.”
Bail reform has become a three-way fight — Republicans pushing for one set of reforms, Gov. Kathy Hochul pushing for her own set of reforms and most legislative Democrats resistant to any further restrictions. Hochul says she wants to eliminate any confusion in the law and make sure judges have discretion to set bail for those accused of serious crimes and repeat offenses. Legislative Democrats and their supporters discussed a new study by John Jay College’s Data Collaborative for Justice that they said showed bail reform was working. For the most part, those released after low-level misdemeanor offenses didn’t reoffend, according to the study — and that’s what legislators are focusing on. Instead of bail reform, they pushed for good cause eviction, housing access voucher programs, unemployment bridge programs, tax increases on the state’s wealthiest residents and corporations, and increases in supportive housing programs. Legislators said they prefer providing better safety net programs and protections than rolling back bail reform.
The study found only weak support, in general that releasing more bail-eligible people either increased or decreased recidivism. But there is one group that bucked that trend; page 37 of the John Jay College report states there is a subgroup that does reoffend — those accused of violent felonies.
Ashby’s proposal seeks to find a middle ground between the two sides of the bail reform discussion by using New Jersey’s system of replacing cash bail and replacing it with a data-based risk assessment to determine whether or not a defendant is a risk to the community. The issue is then argued in court with judges given the ability to revoke the release of those who are rearrested or fail to appear in court.
“This legislation seeks to move New York closer to New Jersey’s successful system by creating both a fairer and safer criminal justice system,” Ashby wrote. “The legislation will focus our system of pre-trial detention on the risk an individual poses to a community while also eliminating the inequities of cash bail. It provides judges with the discretion to consider the risk an individual poses while also putting in place guardrails for bias by creating a rebuttable presumption against pre-trial detention in cases of low-level offenders that can only be overcome where the court finds a clear unreasonable risk to the community or where there is a history of failing to comply with court directives.”