If you are charged with a crime, you may be detained pending your trial. However, you might be able to be released from jail during this time if you post bail. What is cash bail, is it problematic, and what steps has New York taken to reform the cash bail system in the state?
What is the cash bail system?
The cash bail system restricts when a person can be released from jail while their trial is pending. Cash bail is an amount of money ordered by the court you must pay to be released pending your trial. The idea is that the cash acts like insurance, in that it helps ensure that if you are released you will return to court for your trial and will not be arrested again in the meantime.
Is the cash bail system fair?
Some believe cash bail is necessary for the safety of the public. But many others criticize the cash bail system for several reasons.
One common complaint is that cash bail only benefits those who can afford it, leaving those of a lower socioeconomic status in jail while their trial is pending. They may then seek the assistance of predatory commercial bail companies.
In addition, people of color are more likely to be ordered to pay bail compared to white individuals who have allegedly committed similar offenses. This leads to unfair racial disparities.
New York bail laws
New York has taken the step of dismantling the cash bail system — sort of.
Under New York law, if a person is charged with a misdemeanor, the court can only order non-monetary conditions on their pretrial release. For example, courts may order monitoring or participation in a treatment program, but not cash bail.
If a person is charged with a felony, the court may order non-monetary conditions on their pretrial release or the court may order cash bail with certain restrictions.
If ordering cash bail, the court must consider and publicize specific pieces of information including:
- Whether the person is a flight risk
- Whether posting bail would impose an undue hardship
- Whether the person possesses a firearm, and
- Whether the person allegedly seriously harmed someone
It is important to understand that these are only some factors in determining bail. Also, the list of factors has grown since bail laws were first reformed in New York.
Cash bail was reformed to ensure that the least-restrictive standard is used when determining whether and how a person should be released pending their trial. Whether or not this is appropriate can be argued, but it is important to remember that there are inherent inequalities involved in cash bail in the criminal defense system.