Removal of ‘least restrictive’ requirement: A shift in judicial discretion for bail decisions

May 1, 2023 Rob Abruzzese
New York Gov. Kathy Hochul recently signed a bill to ease notarization requirements in civil cases.
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Gov. Kathy Hochul announced on Thursday that an agreement had been reached to give judges more discretion when setting bail for defendants, a controversial policy change opposed by some Democratic lawmakers.

The announcement came during a state Capitol news conference, where the governor discussed the conceptual agreement on a $229 billion budget that included a wide range of policy proposals, such as minimum wage increases and additional charter schools in New York City.

However, the bail law changes have been a contentious issue, dividing liberal Democrats who argue cash bail disproportionately impacts low-income individuals and those who view it as a public safety concern.

New York enacted significant changes to its bail laws in 2019, seeking to prevent defendants who couldn’t afford bail from being disproportionately jailed. The current agreement, which still requires legislative approval, would remove the “least restrictive” requirement for judges when determining bail, a standard that has been criticized for limiting judicial discretion.

“There’s some horrific cases splashed on the front pages of newspapers where they talk about individuals where a judge and the defense lawyer said following ‘least restrictive means,’ you have to let this person out,” Hochul said. “And some of those cases literally shocked the conscience. You cannot believe they let the person out. And they said, ‘My hands are tied, I have to follow the least restrictive means.’ So it was important to remove that to give the judges the clairity. Don’t fall back on that but look at other factors in determining whether or not the person should be remanded or whether or not they should be let out on recognizance or with bail.”

The governor stated that the changes would allow judges to hold violent criminals accountable while maintaining a fair and accessible justice system that doesn’t criminalize poverty. State Assembly Speaker Carl Heastie confirmed the potential agreement and noted that some issues were still under discussion.

Opponents of the changes, such as Assemblywoman Latrice Walker, argue that they would undermine the 2019 bail reforms and lead to increased pretrial detention, disproportionately affecting low-income individuals and people of color. The proposed changes are part of several political compromises in the budget package, which also includes a minimum wage hike and additional funding for New York City’s public transportation system.

Critics of the bail law changes, including Republicans and progressive activists, are closely examining the details of the agreement, while some have called it “anti-democratic.” Assemblywoman Walker has condemned the changes as being driven by sensationalist headlines and stated that the final budget must prioritize people’s lives over politics.

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