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Eliminating the Bail Bias in New York State
October 2, 2018

In 2018, New York State put forth several proposals with the goal of reforming New York’s criminal justice system, including reshaping New York’s current bail and pretrial detention systems. New York’s laws governing bail date back to the 1970s, at which time they were considered among the best and most progressive in the nation, requiring judges to consider a defendant’s reputation, employment and financial resources, family ties and length of residence in the community, and previous criminal record.

However, bail practices in New York do not reflect the progressiveness of its relatively defendant friendly bail laws: judges often set bail without regard to a defendant’s character or ties to a community, and, importantly, without asking whether a defendant can afford the payment. These practices result in thousands of defendants who, unable to pay an often exorbitant bail amount, are imprisoned without having been convicted of a crime.

By tying freedom to money, New York’s current bail practices have placed an unfair burden on the economically disadvantaged and have created a system in which freedom before trial is the exception rather than the rule. In order to solve these problems, new legislation proposes the elimination of monetary bail for defendants facing misdemeanor and non-felony charges. Defendants will instead be released either on their own recognizance or under non-monetary conditions, such as reporting to a pretrial services agency or travel restrictions prohibiting intentional flight from jurisdiction.

For defendants charged with violent felony offenses, both monetary and non-monetary bail will be permitted; however, a judge must review the nature of the case and the defendant’s personal and financial circumstances before setting bail. In limited cases, such as when a defendant commits a new crime while out on pretrial release, a judge could order a defendant to be held pretrial without bail if the judge finds that the defendant poses a significant flight risk or a threat to another person’s safety, thereby addressing actual threats to public safety.

These proposed changes are a step towards ensuring that freedom before trial is not a privilege available only to those wealthy enough to afford bail. If enactment translates into practice, these changes might serve to partially level the playing field for defendants regardless of economic status. However, if New York continues to move towards non-monetary bail, the shift raises the obvious question of whether non-monetary bail is effective in achieving bail’s essential purpose: guaranteeing a defendant’s return to court.

For further assistance please contact Steven Cohen, Kevin Mahoney, or Michael Benz at 716.636.7600.

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