Hochul won’t budge on ‘dangerousness’ standard for criminal cases, despite calls from Adams and Zeldin

Governor Kathy Hochul delivers remarks with Alcohol, Tobacco, and Firearms Director Steven Dettelbach and New York City Mayor Eric Adams ahead of the Interstate Task Force on Illegal Guns Meeting in Lower Manhattan. Wednesday August 24, 2022.
Photo courtesy of Kevin P. Coughlin / Office of Governor Kathy Hochul

Governor Kathy Hochul again rebuked criticisms from Republican Long Island Rep. Lee Zeldin – her opponent in the governor’s race – and Mayor Eric Adams that she hasn’t made enough changes to bail reforms passed in 2019 amid the state’s ongoing struggles with surging crime.

Hochul defended her move to make several “calculated” changes to the bail reforms – which eliminated cash bail for most misdemeanors and some non-violent felonies – during a radio interview with Brian Lehrer on WNYC Thursday morning. However, those tweaks didn’t include allowing judges to consider a defendant’s “dangerousness” when setting bail.

The governor said the changes, which had been agreed upon with the state legislature during budget negotiations in April, closed “loopholes” in the 2019 bail reforms that gave judges more discretion to set bail for repeat offenders, as well as in cases involving guns and hate crimes.

“We did make targeted changes, very specific changes, to the bail reforms that had been instituted back in 2019,” Hochul said in the Aug. 25 interview. “What we had to do, Brian, was close loopholes that were in place to let repeat offenders go back out on the streets. Or in cases that involve guns or hate crimes, none of them were bail eligible, meaning that there would be a case where a judge would simply send them back.”

Both Zeldin and Adams, who previously said these changes didn’t go far enough, have continuously called upon Hochul to implement a dangerousness standard in the months since the budget passed. They believe allowing judges the power to hold in custody pre-trial those defendants who they deem dangerous under a legal standard would reduce the number of recidivists – those who are arrested for a crime, get released and commit more crimes.

But during the interview with Lehrer, Hochul said she’s reluctant to implement a dangerousness standard because it would be too subjective, and it may open the door for some judges to hold people in jail based on their racial biases.

“Someone walks into [a room with] a judge and sometimes dangerousness is determined by the color of their skin and a perception of dangerousness,” Hochul said. “And that is an unfair system. That is not a justice system that we can be proud of.”

Earlier this month, Adams held a press conference at NYPD headquarters, where he presented statistics claiming that 25% of the 1,494 people arrested this year for burglary committed another felony within 60 days, compared with 6% in 2017. And the 60-day grand larceny recidivism rate was nearly 17% this year, when it was nearly 7% five years ago.

“They say the definition of insanity is to do the same thing repeatedly but expect different results. Our criminal justice system is insane,” the mayor said at the time. “It is dangerous, it is harmful and it’s destroying the fabric of our city.”

Mayor Eric Adams Makes a Public Safety-Related Announcement with NYPD Commissioner Sewell. 1 Police Plaza. Wednesday, August 3, 2022. Photo courtesy of Ed Reed/Mayoral Photography Office.

Adams also pointed to 10 criminals the NYPD refer to as “the worst of the worst,” who the department says have been arrested nearly 500 times since the bail reforms went into effect in 2020 and are still on the streets.

Yet on Thursday, Hochul pushed back on the idea that the statistics were evidence that the recent changes to the bail system, implemented only 5 months ago, aren’t working. In particular, she said every one of the 10 worst criminals Adams cited could’ve been held under the changes she passed, but they weren’t because district attorneys either undercharged the crimes or judges decided not to hold them in jail.

“What it comes down to is how the district attorneys are charging and you have cases where someone under charges a case to make it a lower offense that is not bail eligible,” Hochul said. “Or you have judges who, in their own determination, decide they do not want to hold someone. So we made the changes in our laws to give them the tools they need, and to close some of the loopholes that have been out there and tighten it up. And our data is showing different numbers.”

The mayor’s spokesperson Fabien Levy declined to respond directly to Hochul’s comments when reached by PoliticsNY Thursday, instead referring a reporter to the mayor’s statements from his recidivism presser earlier this month.

In response to the interview, the Legal Aid Society released a statement applauding Hochul’s steadfast refusal to allow judges to consider dangerousness.

“As we’ve stated many times before, ‘dangerousness’ is guesswork, replete with biases that would only lead to the pre-trial caging of more Black and Latinx New Yorkers, and we welcome Governor Hochul’s acknowledgement that this practice is wholly subjective, and that no judge, or human being for that matter, can predict one’s future behavior,” the organization said.

“Albany must continue to reject cries from fringe politicians, rightwing tabloids and the law enforcement lobby to add this wrongheaded and overtly racist standard to New York’s bail statute. Sending more of our clients, people presumed innocent, to Rikers Island – a facility mired in crises – is not only bad policy, but morally reprehensible,” it added.

Zeldin’s campaign didn’t respond to PoliticsNY’s requests for comment.