Criminal Justice

What to know about the state’s new bail reform law

No, watching ‘Law & Order’ does not make you an expert on criminal law.

NYC Public Advocate Jumaane Williams is a vocal supporter the bail reform law enacted on Jan. 1.

NYC Public Advocate Jumaane Williams is a vocal supporter the bail reform law enacted on Jan. 1. lev radin/Shutterstock

Unless you’re an attorney, criminal law can be confusing, even for die-hard “Law & Order” fans. The state’s new bail reform law, all 20 pages of it, is no exception. Here’s what you need to know about bail, the new law and the various new provisions that it puts in place for people accused of a crime and awaiting trial.

What is the purpose of bail and pretrial detention?

The point of bail, submitting a payment in order to be released from jail, is to encourage someone who has been charged with a crime to return for their court dates. Defendants are constitutionally protected by the Eighth Amendment against excessive bail. In New York, a judge is able to consider a variety of factors when setting bail, such as prior criminal history, whether or not someone has previously returned to court and the charges against the defendant. Judges cannot directly consider the danger someone might pose to the community or other individuals when setting bail or determining whether someone should be held in jail before trial. Bail is used as collateral and returned to a defendant at the end of their criminal proceedings. If a person can’t post bail, they are jailed for the course of their trial. If a defendant flees after posting bail, he or she forfeits that money. Pretrial detention and bail are not meant to keep accused criminals off the streets prior to a conviction.

What changed under the new bail law?

Under the new bail law, prosecutors can only ask for bail or pretrial detention in certain felony cases – including almost all violent felonies – and a handful of misdemeanor charges. Nearly all Class A felonies – the most serious category of crime, including murder, first-degree arson and first-degree kidnapping – are still eligible for bail or pretrial detention. So are the vast majority of felony sex offenses. Witness tampering and witness intimidation also fall under that category, as do terrorism and terrorism-related charges.

Most other misdemeanors, nonviolent felonies and a couple categories of violent felonies now lead to someone being automatically released. However, a judge can impose nonmonetary conditions like electronic monitoring or travel restrictions to help ensure that someone returns to trial, if that’s considered necessary. A judge can use the same set of criteria for bail to set nonmonetary restrictions. One notable change, however, is that judges can no longer consider the strength of a case against a defendant nor the likelihood of a conviction when setting bail or nonmonetary conditions.

Wait, there are some violent felonies that will lead to a defendant being automatically released?

Yes, certain felonies are technically categorized as violent or sound like they are violent that won’t be eligible for bail. In some cases, though, the crimes don’t involve a weapon or even direct interaction with the victim. Second-degree manslaughter – also referred to as involuntary manslaughter – is one of the more serious sounding crimes that now leads to an automatic release. This crime is not even technically considered a violent felony under state law. Although someone died, a defendant accused of second-degree manslaughter is not believed to have intended to kill or injure the victim, and they are accused of acting in a criminally reckless way that resulted in death. This is different than varying degrees of murder, when the defendant is generally accused of intentionally trying to kill someone, or even first-degree manslaughter, when there is at least an intent to cause harm.

The two “violent felonies” that lead to an automatic release are second-degree burglary and second-degree robbery, but only in very specific instances. For the burglary charge, the automatic release only occurs if the building that the defendant is accused of breaking into is a “dwelling.” In other words, if someone is unarmed, does not threaten anyone and does not harm anyone when breaking into a home, that person will now be automatically released. Similarly, someone accused of second-degree robbery can only be released if that person is helped by a second person, but neither caused physical harm or displayed a weapon.

What about the guy who allegedly robbed a bank in New York City and is now accused of committing another bank robbery after being released?

In that case, the accused was charged with grand larceny, which is considered a nonviolent felony under state law. He did not allegedly use or display a weapon, nor did he cause any physical harm, so he was automatically released without bail. However, if this person is in fact arrested again while awaiting trial for the original arrest, stricter pretrial restrictions, including bail, may be imposed. Stricter pretrial conditions can be set for any defendant who is arrested for a felony after being released, regardless of the nature of the original felony charge. Bail can also be set if someone repeatedly does not show up to court or engages in alleged witness tampering while released.

It’s important to remember that there was no guarantee that this alleged bank robber would have been in jail pretrial prior to the passage of the bail reform law. If bail had been set, he could have posted it and been released.

What about domestic abuse and domestic violence cases that are not eligible for bail? What protects those victims?

As it was before the bail reform law took effect, judges remain able to put in place certain protections if the victim of a crime shares a home with the defendant. These include issuing an order of protection against a defendant and ordering a defendant to give up their firearms. If a defendant violates the order of protection, a judge can set bail or hold that person pretrial. That person would be accused of criminal contempt, which is considered bail-eligible under the new law. Other instances of someone violating an order of protection while released prior to trial can lead to stricter pretrial conditions. This was also true before the bail reform law was passed.

In addition, misdemeanor domestic violence offenses and all felonies can also qualify a defendant for electronic monitoring, the most restrictive nonmonetary condition a judge can impose upon release.

What about a proposal that would allow judges to consider the danger a defendant poses when deciding on bail or pretrial detention?

The idea of adding a clause about dangerousness is not new, and was in fact negotiated out of the new law that passed as part of last year’s state budget. Several other states, including New Jersey and California, allow judges to hold a defendant before trial if that person is deemed to pose a risk to the community or others. Many wanted to give judges similar discretion in New York as a safety measure, and the issue has been raised again now that Democratic leaders have opened to door to tweaking the bail reform law.

On the surface, bail and dangerousness seem interwoven, but realistically they are two different issues, particularly in New York. Bail is meant to ensure compliance with the criminal justice system by encouraging defendants to return to court, while dangerousness is a public safety measure. Although federal courts and some states allow a defendant’s right to bail to be waived in certain instances with regard to dangerousness, New York has never directly allowed judges to do this. Advocates for criminal justice reform argue that giving judges this discretion would result in the same biases that saw poor, minority defendants disproportionately incarcerated pretrial while they are still innocent in the eyes of the law. Coincidentally, the federal law that allowed judges to consider dangerousness when deciding whether to waive bail came as a result of heightened fears about crime in the 1970s after the bail reforms of the 1960s.

So does bail reform make us less safe?

The short answer is that it is too soon to tell in New York. Although newspapers and television news have highlighted sensational cases, there is no data yet on the overall impact of the new bail reform law and whether it has had any significant effect on public safety. It’s also impossible to tell if the number of people missing court dates has increased, decreased or remained steady under the new law. However, data from New Jersey – which changed its bail system in 2017 and includes assessments of public risk – suggests that eliminating cash bail does not lead to a surge in crime, and defendants there showed up to court at the same rates as before.