Historic Bail Reform Compromise Passes In New York Budget

Historic Bail Reform Compromise Passes In New York Budget


The debate over New York bail reform finally ground to a halt in Albany at 2:19 am eastern time on Friday morning April 3, 2020.  The New York Assembly voted for in favor of the Governor’s budget that included a so-called “fix” to the bail reform passed last year which has dominated headlines ever since January 1 due to increases in crime and calls for a reversal from law enforcement groups, prosecutors, and many victims’ rights groups.

What was the fix? 

Monetary bail was re-introduced into the system for a wide variety of qualifying offenses, mostly felony offenses, along with some small percentage of misdemeanors.  Still law is the  presumption in favor of the least restrictive conditions of bail.  Judges, however, now have discretion as they did under the old system to set bail in what are mostly serious, qualifying felony offenses, which is what the problem with the new system was—to many top-end mandatory get out of jail free cards.  Judges are not required of course to set bail, but they are given the tool back within their discretion.

Welcome for the first time, preventative detention.

Significantly, and we would argue unnecessarily, the State of New York for the first time in almost 400 years, will now allow prosecutors to seek preventative detention (deny release and lock up defendants pending trial) in ALL qualified offenses that are felonies, some of which will be non-violent cases.  This is a stunning turn of a events for a state that has historically rejected such policies since the Rockefeller Administration and vigorously rejected ever since.

Interestingly, there is no standard for preventative detention, other than being charged with a qualifying offense, and we assume a motion from a prosecutor asking for it.  If used with any degree of significance, the burden this will place on civil rights, and potentially even jail populations, could be unbelievably high.  One must remember—when bail is set, it is very often posted and the accused is released.  When someone is detained without bail—they are detained period and not released.  And in New York, all that will be necessary will be the filing of a qualifying charge, and boom, lock ‘em up, throw away the key.  It seems we have gotten a long way from a narrative about addressing low-level misdemeanor cases, which is where this entire debate began some 5-6 years ago.

While we did not believe the old law was a huge problem, although we admitted it needed some fixing in certain areas, the new law has made some important fixes.  But, unfortunately for the first time since the British conquered New Netherland in 1664, New Yorkers will be subject to the power of the police and prosecutors to detain them and deny their right to bail based solely on lodging a criminal charge. 

The new law also made a variety of smaller but notable changes.  Of interest…no more fees charged to defendants for any pretrial services, which will basically force the re-write of any contract that permits charges to defendants for any services pretrial, whether it be drug screening, ankle monitors, house arrest, drug treatment, etc.  The legislation also requires a comprehensive statistical report.

After all of this, this is where we landed? 

Ultimately, when all the dust settles on all of the rhetoric about the right to bail, we think New Yorkers will realize a terrible mistake was made, and one that will serve, over time, to erode the right to bail and put continuing pressure on political officials to seek detention or face the wrath of an angry mob.  And certainly, to score political wins, every time someone commits a crime while out on bail, bills will be run to increase the government’s power to deny bail.

In no scenario did we think New York would embrace the powers of preventative detention.  But it happened.  And, despite providing study after study that showed preventative detention does not decrease crime, the legislature moved forward anyway.  We must think—this is likely the beginning of a national discussion on eliminating preventative detention altogether or at least significantly limiting it, even as some continue to want to expand the power of the government to detain.  By way of example, the federal government preventatively detained 2% of cases in 1983 before there was the power of preventative detention, although another 22% had unposted bail, totaling a 24% pretrial detention rate.  The federal government detains 72% of all defendants today.

The system’s thirst for greater incarceration can now be easily quenched in New York for the first time in 400 years, and while returning discretion to judges to set monetary bail In appropriate cases was the right move, the expansion of preventative detention is the real news.

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