New York Bail Law Explained

Bail will be available for more crimes, but the core of the law remains.

Three months after it took effect, the New York bail reform law was amended in early April, 2020. A judge can now impose cash bail in more situations than before. Additionally, bail and other pretrial release conditions will be set with increased discretion by these judges. The updates came into effect on July 1, 2020.

By reducing the number of people being held in prison awaiting trial because they could not pay bail, the original bail reform law was designed to reduce incarceration rates. A 90% reduction in cash bail would have resulted in at least 40% fewer jail inmates, according to court watchers. Other than that, judges continued to set cash bail in the remaining cases.

Before and after its implementation on January 1, 2020, the reforms of the law were criticized. A number of prominent district attorneys and other law enforcement officials have requested that the enacted law be immediately revised despite limited data. They claim that it has contributed to a rise in crime.

The legislative body complied and included the changes in the annual state budget bill, which was signed by the governor a few days later.

Despite changes to the bail reform law, the basic framework estab­lished by the original law remains unchanged. Judges are still required to release people with the least restrictive conditions necessary to reasonably assure that they will return to court for most misdemeanors and nonviolent felonies. It is still prohibited to post cash bail for these crimes.

It is generally the judge’s discretion whether to release an individual, with or without pretrial conditions that ensure the individual returns to court. Among the measures the judge can take are electronic monitoring, drug treatment programs, and setting bail. For certain felony cases, the judge may remand someone into custody.

The cash bail system expands

For most violent felon­ies, as well as some non-violent felon­ies, such as witness tamper­ing, cash bail was offered. As a result of the revisions, a number of additional crimes and circumstances have been added to this category. Among them is the charge of second-degree burglary in which an individual is accused of entering the living area of a house, as well as certain trafficking in persons offenses and promoting an obscene sexual performance on a child. Additionally, they include certain crimes involving assault, such as vehicular assault, and all charges alleging that a person died as a result of those crimes.

Con­di­tions trigger cash bail

In accordance with the revisions, judges will be able to set cash bail based on not only the crime committed, but also a person’s legal history and status. This will permit the use of bail in a wider range of cases than before.

If someone is on probation, under post-release supervision, or subject to sentencing as a “persistent offender,” cash bail can be set even for felony charges that would not otherwise qualify.

Moreover, cash bail may be set if a person who has been out on pretrial release for an offense involving a specific victim is arrested for a new crime that also involves a specific victim. If, for instance, a person charged with nonviolent robbery is released pretrial and commits another such robbery, a judge has the option of setting cash bail on the second arrest, despite the fact that it is not generally permitted for such crimes.

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Pretrial release options expanded

Although cash bail is now permitted in more cases, it is not required. A judge in New York is allowed to release persons pending trial under a variety of conditions designed to ensure that the person returns to court. This is even if the offense qualifies for bail.

As a result of the most recent changes, judges are now provided with more options concerning pretrial release conditions. Previously, judges could order a smaller range of measures, such as pretrial supervision and travel restrictions. Judges now have a greater degree of discretion as a result of the update. As part of their pretrial release, judges may now require individuals to surrender their passports, avoid contact with witnesses or victims, or engage in counseling or mental health treatment.

The original and revised laws do not provide sufficient funding in order to implement specific services and programs for the increased number of people who will be released before trial under supervision.

The manner in which judges can set bail still varies depending on the circumstances. As an alternative to cash bail, judges can also order a variety of bond types, such as one in which friends and family agree to guarantee a person’s return to court, and another in which property used as collateral can be forfeited if the individual fails to appear.

Collecting and analyzing data

According to the revised law, court administrators are required to collect and publish information regarding people charged with crimes and what happens during the pretrial phase of their cases. Demographical information, criminal history details, and details regarding the offenses charged are included in this data.

As part of the new law, court administrators must also keep track of how many people are released and under what conditions, how many are in pretrial custody and for how long, how often people fail to appear or are rearrested, how long any pretrial imprisonment period lasts, and how the case goes.

This information could indicate whether bail laws are working as intended if the data collection and reporting requirements are implemented rigorously. The pretrial system can also show if people are treated equally across demo­graphic groups. Data could also tell you what conditions of pretrial release are most and least effective at getting people back to court over time.

However, no specific funding was allocated for these new requirements.

Bail reform in New York: long-term effects

The bail law changes in New York still leave cash bail in place, but the state is giving judges greater discretion in how to arrange pretrial release conditions. The revised law still does not require judges to set cash bail, even though it is now an option in more cases.

No one should be imprisoned for lack of funds. There should be a collaborative approach between the prosecutor, the defense attorney, and the judge with regard to establishing pretrial release conditions that are reasonable and do not restrict people’s freedom excessively.

The use of cash bail can be especially harmful to individuals who have not been proven guilty in a system where everyone is presumed innocent. Aside from the trauma of imprisonment, even a brief period of detention can result in loss of employment, housing, or custody of a child.

As a result, prosecutors should refrain from asking for cash bail as often as possible, and judges should rarely set it without fully assessing the defendant’s risk of flight and financial ability to pay. Considering other places that have implemented bail reform, it is likely that society as a whole will benefit greatly from fewer people being imprisoned in awaiting trial.