Upstate NY Republican lawmaker pitches bail compromise, new commission to steer judicial discretion

ALBANY — An upstate Republican lawmaker believes there’s a path to bipartisan compromise on bail.

As Gov. Hochul butts heads with her fellow Democrats over her plan to once again amend New York’s bail laws in this year’s budget, Sen. Jake Ashby (R-Rensselaer) is proposing an overhaul he says will grant judges more discretion and still keep low-level offenders from being jailed simply because they’re poor.

“Fairness and public safety are not mutually exclusive,” Ashby said. “We can support and empower judges and law enforcement officials while acknowledging the reality that rich people and poor people have historically had very different experiences dealing with our criminal justice system.”

The freshman senator, who previously served in the Assembly, unveiled a bill on Tuesday that would greatly expand judges’ ability to hold dangerous defendants pretrial while still eliminating cash bail for most nonviolent misdemeanors.

Essentially, the bill would give judges the option to remand a defendant charged with a felony or certain misdemeanors if they are seen as a danger while keeping the bulk of the current cashless system in place.

The bill also calls for the creation of a new Commission on Public Safety made up of law enforcement, judges, prosecutors, defense attorneys, and appointees nominated by the governor and legislative leaders.

The panel would be tasked with creating a risk assessment tool for judges in consultation with the Division of Criminal Justice Services based on data, arrest statistics and other factors.

In line with Hochul’s belief that there are “inconsistencies” in the current law, Ashby argues that the commission would help clarify the legislation’s initial guidance to judges classifying most felonies and some misdemeanors, including sex crimes, domestic violence and witness tampering, as remand-eligible.

“It’s about removing politics from the process and getting serious professionals to provide guidance that’s about assessing risk, period,” he said. “That’s not about the color of your skin or how much money is in your bank account.”

The state’s bail laws have been a lightning rod of political controversy since the Democrat-led Legislature approved changes in 2019 limiting pretrial detention for most nonviolent crimes and ordering judges to only impose the “least restrictive” means of ensuring defendants return for court.

Hochul, who successfully negotiated tweaks that expanded the list of bail-eligible crimes into last year’s state budget, is hoping to once again address the issue this year by eliminating the so-called “least restrictive” standard for serious crimes.

Republicans and moderate Democrats, including Mayor Adams, have blamed cashless bail for spikes in violent crime and called for granting judges more discretion despite little evidence linking the two.

Polls have repeatedly shown that crime is a major concern for New Yorkers amid an uptick in the wake of the COVID-19 pandemic.

Most Democrats, who hold supermajorities in both chambers of the Legislature, have not embraced Hochul’s plan to revisit bail in this year’s budget, which is due at the end of the month.

Senate Majority Leader Andrea Stewart-Cousins (D-Yonkers) said last week that misinformation about the current law has led to a wave of undue backlash.

“Violent offenders have always been bail eligible,” she told reporters. “And that’s what, I think, people have not understood.”

Some Democrats, while opposing Hochul’s plan, have called for new training for judges who might be misapplying the statute or not setting bail in certain situations even if it’s allowed under the current law.

Criminal justice advocates and progressive Democrats argue that the governor’s approach would essentially gut the 2019 reforms, which eliminated cash bail and mandated release for most misdemeanors and nonviolent felonies.

“The governor’s plan will only ensure that more Black and brown people are sent to jail pretrial,” Assemblywoman Latrice Walker (D-Brooklyn) said during a virtual press conference on the topic last week. “And it will ensure that more Black and brown people die on Rikers Island. This is not the future I want for New York.”

Some of Ashby’s fellow Republicans have said they support Hochul’s proposal, while others say they want nothing short of a full repeal of the 2019 laws.

Still, the lawmaker is hopeful his alternative approach can gain traction and garner support on both sides of the aisle.

“It seems like lots of members are open to compromise. Most people seem to agree that how much money you have shouldn’t dictate if you’re sitting at home or sitting in jail,” he said. “Most people seem to agree that previous efforts to reform the pretrial process didn’t do nearly enough to protect our families and promote public safety. Let’s work together and fix it.”