NY criminal justice policies on shaky ground after 5 years of bail reform backlash

A number of proposed laws that advocates say would make the criminal justice system more fair for people charged with crimes face an uncertain future in Albany this year, as the Democrat-led state house grapples with backlash from critics who say reform measures have made New Yorkers less safe.

Two high-profile progressive laws that passed five years ago — bail reform and discovery reform — have since sparked fierce criticism from law enforcement, tough-on-crime politicians and New Yorkers concerned about the lasting effects of a pandemic-era crime spike. Now, even as crime levels drop, some scholars and legislators told Gothamist they don’t expect progressive criminal justice reform policy to be a priority this year.

“The fatigue and the negativity around criminal legal system reform that has kind of built up over the past few years I think is making it more challenging than it should be or otherwise would be,” said Jullian Harris-Calvin, program director at the Vera Institute of Justice.

This year, advocates are continuing to campaign for more than 10 measures, some of which have failed to garner enough support to become law in recent years. It’s unclear if they’ll have enough votes to pass this legislative session.

One pair of bills would increase access to parole for people who are elderly or can demonstrate to the parole board that they no longer pose a safety risk. Another measure would end so-called mandatory minimum sentences — requirements that judges impose predetermined prison terms for certain crimes.

Others would eliminate court fines and fees, allow judges to reduce a person’s sentence after a period of time, and make the clemency application process more transparent.

Sen. Zellnor Myrie, a Democrat who represents central Brooklyn, said he hopes lawmakers will support measures he believes would keep communities safe and make the legal system more just — even if those proposals aren’t “politically expedient.” Getting them passed, he said, would require lawmakers across the aisle to be open-minded.

“You have to be willing to have conversations with people that disagree with you,” Myrie said in an interview. “You may come to find that there’s actually less disagreement than you think.”

Myrie said it’s tough to predict which criminal justice reform policy will prevail in any given legislative session. In 2023, lawmakers approved two bills that he had championed for years — the “Clean Slate Act,” which would automatically seal criminal records for state-level convictions, and the “Challenging Wrongful Convictions Act,” aimed at making it easier for people who believe they have been falsely convicted of a crime to argue their innocence in court.

Gov. Kathy Hochul signed the “Clean Slate Act” but vetoed the “Challenging Wrongful Convictions Act,” saying in a memo that she supports preventing wrongful convictions but worries the legislation would flood the courts with “frivolous” claims.

Myrie said bills proposing drastic changes to the legal system often take years to garner support, and added that they're often adjusted over time even when they manage to pass. Such was the case with bail reform, which barred judges from setting money bail for many types of crimes. Amid mounting pressure from critics, lawmakers have since made additional crimes eligible for bail, such as selling a gun to a minor, and have given judges more discretion to set pretrial release conditions.

Myrie said it’s crucial for lawmakers to address concerns from community members and stakeholders — including those who fear that changes to the criminal justice system will increase crime.

“There’s nothing more important to any individual than their safety. And that can oftentimes not depend on what the facts are or what the reality is, on the statistics, but how they feel,” he said. “And it is a hard thing to legislate a feeling.”

Fears of crime shape rhetoric, policy

Senate Minority Leader Rob Ortt, a Republican who represents Niagara, Orleans and parts of Monroe counties, said many New Yorkers want more conservative criminal justice policies.

He said they feel afraid because of stories they've heard or because of their own experiences within their communities, such as crime leading a business to shut down or feelings of unsafety causing residents to move out of a neighborhood.

“I think that they hit differently and land differently and affect people differently than saying, you know, crime is up or down 2% last month or 3% or this or that,” he said.

Ortt said Republicans have leaned into sharing those stories, and that they have resonated with New Yorkers who have opted for more conservative candidates.

He noted that residents of the Bronx — typically a Democratic stronghold — elected a Republican to the City Council for the first time in decades. Political analysts said fears of crime and criticism of New York’s criminal justice reform policies also helped to flip several of the state’s congressional seats in 2022 and contributed to an unexpectedly tight gubernatorial race between Hochul and Rep. Lee Zeldin the same year.

Concerns about crime have permeated also Gov. Hochul’s messaging and policies.

During her annual state of the state speech earlier this month, Hochul pledged to advocate for crime-fighting strategies that would allow New Yorkers to “live free from chaos and disorder.”

As she announced her plans to crack down on retail theft, the governor described chaotic scenes in stores where baby formula is locked behind plastic panels.

“Thieves brazenly tear items off the shelves and menace employees. Owners go broke replacing broken windows and stolen goods, driving many out of business,” she said. “These attacks are nothing more than a breakdown of the social order. I say no more. The chaos must end.”

Hochul repeated a similar message at the New York State Sheriff's Association's winter conference just days later.

“The murders and the gun possession cases, those are way down. That is very good news,” she told the gathering. “But what has popped up are the quality of life issues. They’re just driving everybody nuts. Not feeling safe walking down your streets anymore.”

Political scientist Susan Kang, an associate professor at John Jay College of Criminal Justice, said she expects other concerns to overshadow both crime and criminal justice reform during the legislative session and the 2024 election season.

“More pressing than crime right now is a cost of living crisis, a lack of sufficient housing, and, of course, the migrant issue, which is a big issue for not just Democrats in New York state but also nationally,” said Kang. “Those are issues that I think Democrats in Albany are going to want to deal with.”

Harris-Calvin with the Vera Institute said she hopes the backlash from bail and discovery reform taught politicians and advocates about the importance of anticipating unintended consequences — including costs, bottlenecks in the court system, and political repercussions — before additional criminal justice reform measures go to a vote.

With bail reform, for instance, she said lawmakers didn’t initially set aside extra funding for all the additional people who would be placed on supervised release in the community instead of waiting in jail pretrial. Growing caseloads caused a massive strain on a system designed to support people who are repeatedly arrested, often on violent felony charges, as Gothamist has previously reported.

Harris-Calvin said supporters of policies like bail and discovery reform also failed to explain them to New Yorkers.

“That is a lesson that I think needs to be implemented for the sentencing reforms, the parole reforms that are up, any criminal legal system reforms, quite frankly,” she said. “We would be quite remiss and really at fault if we don’t do that and they get rolled back.”

Jon Campbell contributed reporting.