Rollback of Bail Reform in New York for Certain Offenses

April 15, 2020

By Jill K. Sanders, Esq.

On April 2, 2020, New York State Governor Andrew Cuomo signed the state’s 2021 budget. Part of the budget is new legislation dealing with bail reforms which went into effect earlier this year. This rollback is being hailed as a reasonable modification by police and prosecutors. Criminal justice advocates, however, see this as going back on the progress made.


Background on Bail Reform

In New York, the purpose of bail is to ensure a defendant returns for all his/her future court appearances. Last year, the legislature passed reforms to the state’s bail laws. We detailed many of the reforms to New York’s bail system in on our blog.

Beginning January 1, 2020, release or release without monetary conditions is 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)

The types of bail available were also revised. A court now must set at least three forms. Types of bail include cash, bond (secured, unsecured or partially-secured), pre-trial monitoring, or electronic monitoring. Moreover, the judge must consider the individual’s financial situation in determining the bail amount. A court could also set no bail, or releasing a person on his/her own recognizance.


Details of the Rollback

Now, the state’s new budget makes adjustments to these previous bail reforms. The revised bail laws are to take effect on July 1, 2020.

The rollback includes many changes. First, the budget clarifies the options available to judges with respect to non-monetary conditions for release. Moreover, it enhances the options upon which a judge can condition release, including mental health referrals and requirements to attend counseling. A defendant may now also be required to pay for such release conditions.

The rollback adds several offenses that can are now bail eligible. This includes the following:

  • Any crime alleged to have caused a death
  • Burglary in the second degree of a dwelling
  • All class A-I drug felonies
  • Sex trafficking offenses
  • All offenses involving money laundering in support of terrorism
  • Promoting an obscene sexual performance by a child
  • Failure to register as a Level 3 sex offender
  • Endangering the welfare of a child, when the defendant is a Level 3 sex offender
  • Criminal obstruction of breathing, strangulation, or unlawful imprisonment, where the victim is a family member
  • Aggravated vehicular assault or vehicular assault in the first degree
  • Assault in the third degree or arson in the third degree, when charged as a hate crime
  • Aggravated assault upon a person less than eleven years old
  • Criminal possession of a weapon on school grounds
  • Grand larceny in the first degree, enterprise corruption, or money laundering in the first degree
  • Bail jumping or escape from custody

The measure would also allow a judge to apply cash bail for repeat arrests in some cases.


Criticisms of the Rollback

Proponents of bail reform oppose the rollback measures. They argue the previous system of cash bail unfairly punished the poor. It forced people to spend time in jail just because they couldn’t afford to get out.

Further, the 2021 budget was pushed through during the COVID-19 (coronavirus) pandemic. Some say the Governor took advantage of the distraction to pander to law enforcement, who criticized the bail reforms. And various communities involved in bail reform were not consulted about the rollback.

Law enforcement hail the rollback as reasonable and necessary. The revisions close up what may have been oversights in drafting the original bail reforms. Additionally, there were many defendants who were released and committed new crimes. The rollbacks may prevent many of those situations from occurring again.