Bail Reform—A View From the Bench
(excerpt from New York Law Journal - March 27 2019)
As a New York state court judge who has presided over felony criminal cases in Manhattan for the past 11 years, I am gratified that the Legislature and the Governor are on the verge of enacting landmark reforms to our state’s pre-trial securing order system designed to significantly reduce the number of criminal defendants who are incarcerated before trial. But I also have significant concerns about the specific reforms now being negotiated.
First, in my view, it would be a mistake to eliminate all forms of monetary bail under any circumstance, as has been proposed. Significantly reducing the use of monetary bail would be a better option. Second, our state’s new securing order system must not enact inflexible rules which judges would then be required to mechanically apply to defendants who have particular characteristics, for example, a rule which would require specific kinds of securing orders for defendants charged with particular kinds of crimes. Third, the new system should not impose technically complex and potentially unworkable procedures on courts issuing securing orders. What is needed are new presumptive guidelines which channel judicial discretion in a manner which significantly reduces pre-trial incarceration, while allowing judges to confront each unique case before them with the widest possible array of options. Finally, for any reform to be successful, it must be backed by the significant financial resources which will be necessary to safely manage a large number of new criminal defendants in the community.
Erasing the disparities between wealth and poverty in the singular area of bail is a noble goal. But judges setting securing orders do not deal in abstractions. They confront unique individuals. A judge’s goal in setting a securing order is to impose the least onerous conditions which are necessary to secure the defendant’s appearance as a case progresses. Judges have three general options to do that. The most stringent, which is rarely employed, is remand, that is, to confine the defendant in jail until a case is resolved. Remands are often imposed in murder prosecutions or for certain other very serious charges, or where a defendant has already absconded while a case is pending. But remand is extremely rare in other circumstances. The majority of criminal defendants in New York City are released on their own recognizance or with “non-monetary” conditions, like participation in a drug treatment program. The middle option is bail.
Deleting this middle option while leaving the two outer options intact would significantly reduce the disparities between wealthy and poor defendants. For a judge like me who is tasked with making securing order decisions, however, such a policy would make little sense.
Many defendants, even those without great means, are released after having bail imposed through a bail bond. A defendant can obtain a bail bond by posting a percentage of the bond amount with a bail company, which may be 10 percent of a bond amount or greater. That means, for example, that if a court requires a bail bond of $5,000, a defendant who pays $500 (or more) to a bail bond company will obtain release. Many criminal defendants cannot afford such payments, but some defendants (or their families) can. The elimination of monetary bail would mean that such defendants would either have to be remanded or released on recognizance or with non-monetary conditions. In some cases, however, non-monetary conditions (like electronic monitoring, drug testing or even periodic checks by a pre-trial services agency) might be more onerous than monetary bail. In still other cases, a defendant who may have been released after paying a bond, under variations of the proposed reforms, might instead be remanded. In either case, eliminating monetary bail would hurt those defendants, not help them.