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Analysis

New York’s Latest Bail Law Changes Explained

Bail will be an option for more crimes, but the heart of the law remains intact.

April 16, 2020

New York’s new bail reform law had been in effect for a mere three months when the state legis­lature amended it in early April. The most signi­fic­ant change is that there are more situ­ations where judges can impose cash bail. They will also have more discre­tion in setting bail and other condi­tions of pretrial release. The updates go into effect on July 1.

The purpose of the original bail reform law was to reduce the number of people jailed while await­ing trial simply because they could not afford to pay bail. Court watch­ers estim­ated that it would have reduced the jail popu­la­tion by at least 40 percent by elim­in­at­ing cash bail for as much as 90 percent of arrests. For the remain­ing cases, judges main­tained the option of setting cash bail.

Both before and after the law went into effect on Janu­ary 1, many criti­cized its reforms. Despite limited data, some claimed that the law contrib­uted to increases in crime. Prom­in­ent district attor­neys and other law enforce­ment and public offi­cials called for imme­di­ate revi­sions to the new law.

The legis­lature complied, putting changes into the annual state budget bill, which the governor signed a few days later.

The basic frame­work estab­lished by the original bail reform law has not changed. For most misde­mean­ors and nonvi­ol­ent felon­ies, judges are still required to release people with the least restrict­ive condi­tions neces­sary to reas­on­ably assure the person will come back to court. For these crimes, cash bail is still prohib­ited.

In all other cases, judges have the discre­tion to release people, with or without pretrial condi­tions designed to ensure their return to court. These include elec­tronic monit­or­ing, parti­cip­at­ing in drug treat­ment programs, and setting bail. In certain felony cases, judges can remand people into custody.

More crimes eligible for cash bail

The original bail reform law allowed cash bail for almost all viol­ent felon­ies and certain nonvi­ol­ent felon­ies, such as sex offenses and witness tamper­ing. The revi­sions added addi­tional crimes and circum­stances to this category. They include second-degree burg­lary where an indi­vidual is charged with enter­ing the living area of a home, certain sex traf­fick­ing offenses, and promot­ing an obscene sexual perform­ance of a child. They also include some crimes involving assault, includ­ing vehicu­lar assault, and all charges alleged to have caused the death of a person.

More condi­tions trig­ger a cash bail option

Under the revi­sions, judges will be able to set cash bail based not only on the crime commit­ted but also on a person’s legal history and status, allow­ing for more cases where bail could be used.

For example, if someone is on proba­tion, under post-release super­vi­sion, or eligible to be sentenced as a “persist­ent offender,” cash bail can be set in connec­tion with any new felony charge, even if it would­n’t other­wise qual­ify for cash bail.

In addi­tion, if someone is out on pretrial release for an offense involving a specific victim, cash bail may be set if that person is arres­ted for a new crime that has like­wise has a specific victim. For example, if someone charged with a nonvi­ol­ent robbery is released pretrial and then commits another nonvi­ol­ent robbery, a judge would have the option of setting cash bail on the second arrest even though cash bail is gener­ally not permit­ted for that type of robbery.

Expan­ded options for pretrial release condi­tions

Even though the new law permits the use of cash bail in more cases, it certainly is not required. Even for bail-eligible offenses, New York law allows judges to release people under a vari­ety of condi­tions pending trial designed to ensure the person’s return to court.

The new changes provide judges with more options in fash­ion­ing those pretrial release condi­tions. Previ­ously, judges could order a smal­ler range of options, such as pretrial super­vi­sion and travel restric­tions. The update provides judges with wider discre­tion. Among other things, judges may now require people to surrender their pass­ports, avoid contact with witnesses or victims, or parti­cip­ate in coun­sel­ing or mental health treat­ment as part of their pretrial release.

However, in a short­com­ing of both the original and revised laws, there is no specific fund­ing to imple­ment services or programs for the increased number of people who will be released before trial under super­vi­sion.

There are also still vari­ous options for exactly how judges can set bail. For example, instead of cash bail, judges may also order differ­ent types of bonds, includ­ing a type where friends and family members agree to guar­an­tee a person’s return to court, and a secured type, for which prop­erty used as collat­eral can be forfeited if a person fails to return to court.

Data collec­tion

The revised law requires court admin­is­trat­ors to collect and publicly report data regard­ing people charged with crimes and what happens during the pretrial phase of each case. This data includes demo­graphic and crim­inal history inform­a­tion, as well as details regard­ing the charged crimes.

The new legis­la­tion also requires court admin­is­trat­ors to track how many people are released and under what condi­tions, how many are commit­ted to pretrial custody and for how long, the rate at which people fail to appear or are rearres­ted, the length of any period of pretrial incar­cer­a­tion, and case outcomes.

If the data collec­tion and report­ing require­ment is imple­men­ted rigor­ously, this inform­a­tion could show whether the bail law is work­ing as inten­ded. It also has the poten­tial to reveal whether the pretrial system is treat­ing people fairly across demo­graphic groups. Over time, the data could also identify which condi­tions of pretrial release are more and less effect­ive at encour­aging people to come back to court.

But again, the law failed to alloc­ate specific fund­ing for these new require­ments.

Long-term effects of bail reform in New York

Although New York has yet to elim­in­ate cash bail, the changes to the bail law give judges substan­tial discre­tion in fash­ion­ing pretrial release condi­tions to encour­age people to come back to court. And under the revi­sions, it’s still the case that noth­ing in the law requires judges to set cash bail, even if that is now an option in more cases.

Nobody should be held in jail because they cannot afford to pay bail. Prosec­utors, defense attor­neys, and judges should approach pretrial release creat­ively to set condi­tions that will reas­on­ably assure that people return to court in a fair manner without being unduly restrict­ive.

In a system where every­one is supposed to be presumed inno­cent, cash bail can be extremely harm­ful to people who have not been proven guilty. In addi­tion to the trauma of being imprisoned, even a few days in jail can cause people to lose their jobs, hous­ing, or custody of their chil­dren.

There­fore, prosec­utors should avoid asking for cash bail as much as possible, and judges should rarely set it without a seri­ous inquiry into the defend­ant’s risk of flight and abil­ity to pay. Time will tell, but based on the exper­i­ence of other places that have imple­men­ted bail reform, it’s likely that soci­ety at large will bene­fit greatly when fewer people are locked up await­ing trial.