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A rollback of controversial changes to New York State Criminal Procedure Law took effect on Thursday, restoring discretion in trial court judges to impose cash bail in a wider variety of criminal cases.

The new amendments were passed by the State Legislature as part of the 2020 budget bill and signed into law by Gov. Andrew Cuomo on April 3, with an effective date 90 days after becoming law.

Sweeping criminal justice reform amendments adopted in the 2019 budget bill, which took effect Jan. 1, removed trial court judges’ discretion to impose bail as a condition of pretrial release for nearly all misdemeanor and nonviolent felony offenses. The legislation meant that people charged with misdemeanors and nonviolent felonies had to be issued desk appearance tickets by police, requiring the defendant to appear in court on a future date.

Public opinion and pressure from law enforcement, prosecutors and a Republican coalition of state lawmakers brought the issue back to the legislative agenda this year.

The new law adds many crimes to the list for which judges are again allowed to set bail or send a defendant to jail pending trial.

These include:

  • Burglary in the second degree (felony) where the defendant is charged with entering the living area of a home
  • Grand larceny in the first degree (felony)
  • Sex trafficking or sex trafficking of a child (felonies)
  • Promoting an obscene sexual performance by a child (felony)
  • Aggravated assault upon a child under 11 years old (felony)
  • Any crime alleged to have caused the death of another person
  • Criminal obstruction of breathing or blood circulation (misdemeanor)
  • Strangulation in the second degree (felony)
  • Criminal possession of a weapon on school grounds (felony)
  • Unlawful imprisonment in the first degree (felony) when alleged to have been committed against a member of the defendant’s family or household
  • Assault in the third degree (misdemeanor) and arson in the third degree (felony) if charged as a hate crime
  • Enterprise corruption (felony)
  • money laundering in the first degree (felony)
  • Money laundering in support of terrorism in the third or fourth degree (felonies)
  • Failure to register as a sex offender (felony)
  • Endangering the welfare of a child (misdemeanor) where the defendant is a designated level three sex offender
  • Bail jumping in the third degree (misdemeanor)
  • Escape in the first, second (felonies) or third (misdemeanor) degrees
  • Any felony offense committed while serving a sentence of probation or while under to post-release supervision
  • Any felony committed by a “persistent felony offender”
  • Any felony or class A misdemeanor involving harm to an identifiable person or property committed while charges are pending on another felony or class A misdemeanor involving harm to an identifiable person or property

The law also authorizes judges at arraignment to impose new conditions on pretrial release, including requiring them to surrender their passports, refrain from contact with victims or witnesses, and get mandatory treatment or counseling.

The new law also rolls back a pretrial discovery requirements imposed on prosecutors in 2019 reform law, which mandated prosecutors to make initial evidentiary disclosures to defendants within 15 days. That measure was criticized by prosecutors across the state and under the new law, has been extended to 20 days if a defendant is in jail and 35 days if not in jail.

A push by some opponents of last year’s reforms to give judges discretion to consider a defendant’s “dangerousness” when deciding whether fix bail or incarcerate the defendant. Longstanding New York law requires the court to consider only whether a defendant is likely to return to court in the future when making bail decisions.

The purpose of bail is to secure a defendant’s return to court. But people who are arrested and cannot afford to post bail are incarcerated before there’s any adjudication of guilt — often for long periods of time. Six out of 10 people in U.S. jails — nearly half a million people — are awaiting trial, according to the U.S. Department of Justice’s Bureau of Justice Statistics.

The money bail system disproportionately impacts African-Americans and Hispanics, according to the Pretrial Justice Institute, which advocates for bail reform. “Compared to white men charged with the same crime and with the same criminal histories, African-American men receive bail amounts 35% higher; for Hispanic men, bail is 19% higher than white men,” PJI says.

Local communities spend at least $14 billion every year to detain people who have not been convicted of the charges against them, according to a report by the Prison Policy Initiative.

The 2019 reforms were pushed by Gov. Andrew Cuomo and the Democratic majorities in the State Assembly and State Senate. Republican legislators, including State Senator Ken LaValle (R-Port Jefferson) and Assemblyman Anthony Palumbo (R-New Suffolk), opposed the reforms, which passed largely along party lines.

Palumbo sponsored legislation to fully repeal the 2019 reform measures, but it did not move forward in the Democratically controlled Assembly.

South Fork Assemblyman Fred Thiele (I-Sag Harbor), who supported the 2019 legislation, in December cosponsored a bill to expand judicial discretion to impose bail to include most of the crimes that would eventually become part of the 2020 budget bill.

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