Money bail and pretrial detention can have unequal impacts and add undue punishment upon defendants who await their trials and have not been proven guilty. In 2019, New York passed major reforms that eliminated money bail and pretrial detention for almost all misdemeanor and nonviolent felony cases.
New York’s bail and detention reforms to its criminal justice system took effect in Jan. 2020. Only 10 percent of the approximately 205,000 criminal cases arraigned in New York City in 2018 would have been eligible for money bail under these reforms.
For misdemeanors, money bail is eliminated except for sex offenses and criminal contempt charges for protection of abuse orders in domestic violence cases. Straight pretrial detention is all eliminated for misdemeanors.
Money bail and pretrial detention are eliminated in almost all nonviolent felonies. There are exceptions for witness intimidation or tampering, conspiracy to commit murder, felony criminal contempt charges relating to domestic violence, and some offenses against children, sex offense and terrorism-related crimes.
Money bail and detention is still allowed for almost all violent felonies. Specific sub-sections of burglary and robbery in the second degree do not require bail. Bail and detention are also eliminated for all Class A drug felonies except for operating as a major drug trafficker.
Judges must consider a defendant’s financial resources and their ability to pay when setting bail. Courts have to set at least three types of bail and include a partially secure or unsecured bond which are the two least severe forms of bail.
Courts are also encouraged to release defendants on recognizance while their trials are pending. These defendants are not under restriction except to appear at their scheduled court dates. Defendants have to be released on recognizance unless they are a flight risk.
If a flight risk exists, judges must set the least restrictive alternatives and conditions that reasonably assure the defendant’s return to court. These likely include supervised release, increased court date reminders, restrictions on travel, or restrictions on firearm or weapon possession during the pretrial period.
Electronic monitoring is permitted for 60 days, with a renewal option, for felonies, misdemeanor domestic violence, misdemeanor sex offenses, misdemeanors where the defendant was convicted of a violent felony within the previous five years, and in limited circumstances where the defendant engaged in misbehavior before trial.
Electronic monitoring is permissible if there are no other non-monetary condition or conditions to reasonably assure a defendant’s return to court.
Courts may consider information coming from formal release assessment designed to predict the likelihood of appearing in court. These must be publicly available, free of racial or gender bias, and validated for accuracy. Assessment of the defendant’s future danger or public safety risk are not part of this assessment.
Courts may not issue a bench warrant for 48 hours if a defendant does not appear unless the defendant is charged with a new crime or there is evidence of a willful failure to appear. Defense attorneys may contact their clients within this grace period and encourage them to appear.
Courts may also revoke release conditions and impose new conditions because of pretrial misbehavior such as money bail and detention. Misbehavior includes witness intimidation, willful and persistent failure to appear at scheduled court dates or violating a protection order. Courts must first conduct a hearing where the defendant can present evidence and cross-examine witnesses.
All parts of the journey through the criminal justice system may be intimidating and complicating. Attorneys can help defendants protect their rights.