New York’s default governor, Kathy Hochul, has reached consensus on a new budget that includes money for a new stadium for the Buffalo Bills (whoever they are), billions for child care, a state gas tax holiday and “strengthening bail restrictions.” Why, you ask, would something relating to bail be in a state budget? It’s an election year.

It was 2019 when the NY lege, filled with brand new assemblypersons and senators, made a host of reforms based not on knowledge and experience, but the fevered wishes of the most progressive wing of the criminal defense side of the courtroom, and an interesting experiment was begun. With this budget, the experiment comes to its first end.

The proposals will close loopholes in the “Raise the Age” law to hold more defendants under 18 accountable and target repeat offenders who would not have been jailed under the 2019 soft-on-crime reforms — particularly in gun cases.

“We are now for the first time going to allow judges to set bail for gun charges that were previously subject only to release,” Hochul said. “Also adding factors that a judge must consider.

“We’re also going to be looking at the bail and arrest eligibility for repeat offenders and any crimes, repeat offenses, with harm to a person or property,” she said. “Repeat offenses for property theft, with limited exceptions for crimes of poverty. Close the desk appearance loophole which exists right now.”

And it’s not just bail reform that’s getting a haircut.

The new moves will also tweak the state’s speedy trial reforms which set strict timelines on prosecutors to produce “discovery” — evidence that must be turned over to the defense.

As no doubt will, and should, be raised in response to these changes, the laws are being “unreformed” largely for the wrong reasons. There have been increases in violent crime from the past few years, but we’re still far below historic highs. At the same time, many categories of crimes haven’t increased at all.

Most importantly, these shifts are happening in jurisdictions where reforms are being tried, and progressive district attorneys were elected, as well as jurisdictions where no reforms were implemented and tough-on-crime DAs are in control. In other words, to the extent there is any justification for fears of increased crime, they are wholly unrelated to reforms. There may be some correlation, but there is no evidence of causation. Indeed, there is  strong evidence that the reforms have nothing to do with it, even if newspapers neglect to mention it.

It may well be that the reforms were working, whether well or at least not so badly as to need to be undone. It may be that the reforms created consequences that required tweaking, as they were extremely one-sided and lacked both a buy-in from the other sides of the criminal legal system and judges and serious discussion of whether it would produce a sustainable system. Outside of institutional defenders, most criminal defense lawyers are moderate in their politics. We’ve seen too much of humanity to believe in fairytales and we hear too many lies at the office.

Before the reform of bail laws began, New York left judges with a great deal of flexibility, particularly since our bail law only permitted judges to consider whether bail was needed to secure a defendant’s return to court. There was no consideration of community safety, even if it managed to find its way into the decision through the backdoor of “seriousness of the crime” as a motive to abscond.

But judges were afraid to use their authority for good, and far too often imposed bail on people for whom no bail was needed merely because some baby prosecutor asked and, if the judge failed to comply and the defendant went out and committed some nefarious crime, his or her face would appear on the front page of the NY Post as the worst judge in New York, the judge who let the killer loose.

So just as tough-on-crime politicians imposed mandatory minimums to limit “soft” judges from imposing “light” sentences of life plus the flu instead of cancer, bail reformers took away judicial discretion and mandated indiscriminate release. Of course there were going to be outliers who were freed and went out to commit a heinous crime, but that’s always going to happen as judges have no crystal balls to see into the future. It wasn’t that the judge made a mistake, but that human beings can be awful. What else is new?

Yet here we are, a few years after the Trump Reforms (because without the backlash to Trump, the turnover of the New York Senate to Democrat would never have happened) were enacted in the middle of the night, they are unenacted by a Dem governor who replaced the elected governor who was “credibly accused” of sexual harassment although the accusations were turned away by every District Attorney who heard them, because the public is back to fearing crime, rightly or wrongly, and Hochul wants to be elected governor.

Didn’t anyone see this coming?

Whether the changes will be good, bad or ugly is unclear. What is clear is that they were no more the product of thoughtful discussion among the people who are engaged in the criminal legal system than the 2019 reforms. What is also clear is that they are the product of politics and fear rather than deliberation. None of this is the way to craft a sustainable legal system that both serves its function and respects the constitutional rights and principles like the presumption of innocence, or even the right to keep and bear arms.

We had a once-in-a-lifetime chance to finally make wise changes to a system that had grown unbearably harsh over the tough-on-crime years when the public at large puts aside its knee-jerk fear of crime to embrace the possibility of a system that worked better for everyone. Did we get it? Maybe, but probably not. Changing an extremely complex system that affects millions of lives in so many foreseeable and unforeseeable ways isn’t the sort of thing that should be done in the middle of the night in Albany by the passionately clueless. But that’s what happened and here we are. Again.