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By Jill K. Sanders, Esq.

The views expressed in this opinion piece are those of the writer only. They are not necessarily the views of the law firm or any of its attorneys.

Beginning January 1, 2020, monumental changes are taking place in New York’s criminal justice system. As discussed in P&P’s recent blogs, there will be sweeping reforms. This include changes to pre-trial discovery, to the prison system, and to bail.

Since the laws were enacted in April, prosecutors and police officers have been speaking out about the changes. In particular, there has been criticism of the discovery and bail reforms. Many of these protests seem to imply that we’re entering into a time of lawlessness and that no one will be safe from the thousands of violent criminals roaming our streets.

The criminal justice system isn’t perfect. There will always be people committing crimes. And there will always be recidivist offenders. But when it comes to bail, the new changes should be looked upon favorably. These changes will keep people without means from spending time in pre-trial detention simply because they can’t afford bail. And for those charged with the most violent offenses, bail can still be (and will likely be) imposed by a judge.

Excessive Bail Penalizes the Poor

It’s important to note that even now, prior to the new bail laws going into effect, judges can’t detain people due to a concern that they will pose a danger to the community if released. Since 1971, New York’s bail laws have prohibited the consideration of dangerousness in setting bail. There has always been a presumption that a defendant should be released pending trial.

Despite this, in some cases prosecutors were requesting, and judges were setting, unreasonable amounts of bail for petty offenses. Often times, this was based on a person’s criminal history. High cash bail has a disproportionate effect on those of lesser means, as a person with financial resources can afford to post bail and avoid pre-trial detention.

Can you imagine having to spend months on Rikers Island merely because you can’t post bail? Of those incarcerated on Rikers Island, approximately one-third are charged with misdemeanors. According to one report, for those in custody because they were unable to post bail, half had bail set at $5,000 or less.

The Legislature Was Forced to Act

The culture surrounding bail was slowly changing on its own, particularly here in Westchester and NYC. Yet still judges are setting thousands of dollars in bail for non-violent misdemeanors. Too often, the defendant in such situations is a person of color.

Just this week in Manhattan, I saw a defendant produced from Rikers to answer to some misdemeanor larceny charges. The defendant, a black man, had been held in custody since September. The DA offered him a non-criminal disposition to resolve the case, and the defendant quickly accepted the offer. He would be released after spending three months in custody for a case which resulted in a plea to Disorderly Conduct – a violation which is punishable by only 15 days in jail. Here are a few other examples of my own cases where the bail was unnecessary and excessive:

• A prosecutor asked for $5,000 cash bail for a man charged in Mount Vernon with driving with a suspended license
• A Bronx judge set $1,000 cash bail where the man was charged with a B misdemeanor (punishable by 90 days in jail), citing an open case that had been Adjourned in Contemplation of Dismissal
• A Manhattan judge set $1,500 cash bail (the DA had asked for $10,000) on an Endangering the Welfare of a Child case that ultimately resolved with a non-criminal disposition

Thankfully, my clients mentioned above had the means to post bail. Simply put, prosecutors and judges forced the hand of the Legislature to do something, as too many were sitting in pre-trial detention merely because they couldn’t afford bail or the fee of a bondsman.

Non-Monetary Conditions of Release Can Be Used

The nay-sayers of bail reform seem to forget that non-monetary forms of pre-trial release can be imposed. Yet judges almost never use, and prosecutors almost never request, such conditions. Non-monetary conditions of release can include:

• Pre-trial supervision services
• Electronic monitoring
• Substance or alcohol counseling
• Drug testing
• Curfew

The District Attorney of Orange County recently cited one of our clients as one such case for why the new bail laws are a bad idea. Our client is facing a charge of Leaving the Scene of an Incident Without Reporting, a class D non-violent felony. He’s alleged to have had an accident with a motorcyclist, who tragically died from his injuries.

As of January 1, 2020, our client can no longer be held in custody on cash bail. The DA claims our client is a flight risk because he’s a non-citizen. In this case, the DA ignores the fact that our client is innocent until proven guilty. He glosses over the fact that the allegation in this case is that there was a tragic motor vehicle accident – not an intentional violent offense. He forgets that our client has been working hard and raising a family in Westchester for the last 25 years. Our client has every reason to go back to court, and there is no reason to infer otherwise.

It’s worth noting that, in some cases, the new bail statute will allow a DA to petition for bail where there is a showing that a defendant poses a risk of flight to avoid prosecution. Further, if a defendant is arrested for a new offense while at liberty on a pending case, a DA may also be able to ask for bail.

Concerns About the New Bail Laws

We’re criminal defense attorneys – we advocate for our clients. And our clients have a better chance of adequately and meaningfully defending themselves when they are not held in pre-trial detention. Because of our ethical duty to zealously advocate for our clients, we will always try to get our clients out of jail.

Yet there are some changes in the new bail laws that may be cause for concern. One particular concern is the financial funding needed to support bail reforms. The new laws did not provide funding for implementation. As many more people are expected to be placed on pre-trial supervision, it’s unclear how courts will have adequate resources. More officers and new technology may be needed to make pre-trial supervision work as the Legislature intended.

Lastly, there are two violent felonies which the Legislature decided were not appropriate for cash bail – Robbery in the Second Degree (aided) and Burglary in the Second Degree (dwelling). A person who breaks into my home and steals my things will be automatically released? A person is released even though they helped their friend forcibly steal my cell phone from me? While bail may not be appropriate in every case, perhaps a judge is in the best position to determine that.

References:

• Ronnie Lowenstein, The City of New York Independent Budget Office (May 16, 2017). Available at: https://ibo.nyc.ny.us/iboreports/pretrial-detention-rates-may-2017.pdf (last accessed Dec. 11, 2019).
• Eli Hager, “New York City’s Bail Success Story,” The Marshall Project (Mar. 14, 2019). Available at: https://www.themarshallproject.org/2019/03/14/new-york-city-s-bail-success-story (last accessed Dec. 11, 2019).