In early April, Gov. Andrew Cuomo and the state legislature approved sweeping new bail reforms making many crimes ineligible for cash bail.

Prosecutors say that has forced them to release people who were arrested for looting earlier this week. 

What You Need To Know

  • New bail reforms approved by legislature and Cuomo allows looters to to go right back out onto the street.

  • Reforms restrict which crimes are eligible for cash bail.

  • Looters are being charged with burglary in third degree, which is not a crime that qualifies for bail


“You look at these videos, it would be nonsensical if the police were arresting looters and they were then being arrested and returned to the street the next day to loot again,” said Cuomo. "That would be nonsensical, right?”

Law enforcement officials say their hands are tied. 

Burglary in the third degree, which is reserved for people who steal from stores, is not bail eligible. Only the more serious charges of burglary in the first and second degree come with bail, but those are for home break-ins. 

Cuomo said Thursday in this case prosecutors should consider charging looters with second-degree burglary.  

“Look at what they did and charge appropriately, that's what I'm saying,” Cuomo said. "Don’t feel, well, there's a political environment where I don't want to charge because it's not political to hold people account for crimes. The law is the law.“

Manhattan District Attorney Cy Vance is skeptical. 

"To date, the overwhelming majority of looting cases in Manhattan cannot be charged as burglary in the second degree,” said a spokesperson for Vance. "The facts of those cases don’t support such a charge.”

The governor’s team disagrees.

“Bail can be set if a person is, A: carrying a dangerous instrument, which includes a rock,” said Melissa DeRosa, Secretary to the Governor. “B: uses a rock, brick, or the like to break the window to gain entry; or C: another participant acting with the defendant, that did A or B. That is burglary two under penal law 140.25.”

District attorneys says the problem with that logic is that it’s very difficult to prove a person caught in the act of looting has any ties to the person who first broke into the store.

In a statement, the Orange County district attorney said what Cuomo is essentially asking them to do is “overcharge” people, and that runs counter to their ethical obligations as prosecutors.