For the third time since 2019, New York’s bail laws have been amended (L. 2023, Ch. 56, eff. June 2, 2023). At the outset, on Jan. 1, 2020, New York implemented a new bail statute that was transformative, creating a new landscape for release decisions following an arrest. In response to criticism of the initial statute, however, the Legislature later enacted two series of amendments that attempted to address those concerns: an expansion of both the number of qualifying offenses and the opportunity to impose additional nonmonetary conditions of release.

This year, the Legislature did not propose amendments to the bail statute, but Gov. Kathy Hochul did so out of her stated concern for public safety. The amendments, however, do not mandate more restrictive bail determinations than were authorized under the prior law, nor do they add any additional qualifying offenses. And, a defendant can still raise, of course, the constitutional argument that bail cannot be set in an excessive amount to prevent flight. (United States  v. Salerno, 481 U.S. 739 (1987)). The amendments also retain the essential purpose of bail —to ensure the return of a defendant to court. The amendments, however, do change the overarching standard that judges have been required to utilize in making bail determinations.

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