Did New York’s Bail Reforms Go Too Far?

October 30, 2019

By Jill K. Sanders, Esq.

New York’s criminal justice system will soon undergo dramatic changes. As detailed in our two recent blogs, beginning January 1, 2020, there will be many changes.

One such change will be regarding bail. Bail is meant to be a representation of the least restrictive condition(s) to reasonably assure a defendant’s court appearance. Yet some question if the new bail reforms have gone too far.


What Are the New Bail Reforms?

Beginning next year, all persons who are charged with misdemeanors or non-violent E felonies will be released with a Desk Appearance Ticket, with some exceptions. If charged with a sex offense, escape charges, or bail jumping, a person will be held until they can be arraigned. And a person may be held for arraignment if an Order of Protection may be issued, or if a person’s license may be suspended.

At an arraignment, a judge will determine what release conditions will be imposed. Release, or release without monetary conditions, will be mandatory for the following charges:

  • All misdemeanors and non-violent felonies (except sex offenses, Criminal Contempt in a domestic violence matter, witness tampering or intimidation, terrorism-related charges, and certain offenses against children)
  • All drug charges (except charges of Operating as a Major Trafficker)
  • Robbery in the Second Degree (when aided by another)
  • Burglary in the Second Degree (when committed in a dwelling)

Bail may be set if there is a showing that the defendant poses a risk of flight to avoid prosecution. However, there will not be a public safety consideration when determining bail.


Types of Bail

In addition to changing when bail can be set, the types of bail have also been revised. Now, when bail is set, a court must now set at least three forms.

One such form must be an unsecured bond, or a secured or partially-secured bond. A partially secured bond allows a defendant to pay 10% or less of the bail up front; the balance is due only if the defendant skips court. An unsecured bond requires no upfront payment.

As before, a court can also set cash bail as an alternative. A court will also have to consider the individual’s financial situation in determining the bail amount. A judge can also require pre-trial monitoring. And a court may also use electronic monitoring in certain cases.


What Are the Pros to Such Bail Reforms?

The obvious “pro” to bail reforms is that people will not be held in jail simply because they can’t come up with bail money. Cash bail is unduly harsh to most people of less financial means. The bail reforms will also prohibit excessive bail from being set on minor charges. One study found that in New York City, of the nearly 5,000 persons detained pending trial, 43% would have been released under the new bail reforms. And of the nearly 205,000 cases arraigned in 2018, only 10% would have been eligible for money bail under the new laws.

People also won’t be held on bail when police or prosecutors “over charge” a defendant. Many lower-level felony charges will eventually resolve as either as a misdemeanor or with a non-criminal disposition. If bail were set on the felony charge, a defendant may spend time in jail for a case that ends up as a mere violation.

Another “pro” is that there will be less of a strain on correctional facilities. If fewer people are detained, jails can better allocate their resources. Some may see this as a “con” however, as there may be fewer jobs in local correctional institutions.


What Are the Cons?

The biggest “con” is that public safety will no longer be a consideration for setting bail. Some persons accused of robbery and burglary – both violent felonies – will be released without bail. Those defendants may indeed pose a risk to public safety. What if it was a string of burglaries or robberies? Might they commit the offense again?

Also, many persons charged with drug felonies will be released without bail. While not a gun or a knife, some drugs – such as fentanyl – are so deadly, the public may be put in danger. And drug dealers who aren’t caught with guns may still have access to weapons. Such happened in New Jersey after the state enacted its own bail reforms.

Finally, bail reforms may erode the public’s confidence in the system. If a victim sees the perpetrator back on the street, will the victim feel safe? While an Order of Protection provides some level of assurance, in the end it is just a piece of paper. Without a judge determining what level of dangerousness a defendant may pose, the Legislature may be forcing the release of persons who may commit additional crimes.