NY Bail Reform: ‘Two Steps Forward, One Step Back’

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Yusuf Abdul-Qadir, director of the Central New York Chapter of the New York Civil Liberties Union, and Kelly Gonzalez, deputy director at the Center for Community Alternatives, at Feb. 4, 2020, protest to condemn the resolution to roll back New York’s bail reform law. by The Stand Director via Flickr

Although the landmark bail reform legislation in New York successfully reduced city and state prison populations, it failed to resolve economic inequality in the state’s pretrial detention system, argues Daniel Chasin in the Cardozo Law Review.

Amendments to the law have done little to address the problem, writes Chasin, a J.D. candidate in the Benjamin Cardozo School of Law.

New York’s 2019 bail reforms “[tilted] the scale further toward release rather than confinement,” writes Chasin in his article, entitled “Two Steps Forward, One Step Back: How New York’s Bail Reform Saga Tiptoes Around Addressing Economic Inequality.”

The law mandates that the court shall release an individual on their own recognizance. However, amendments to the law promoted by opponents sharply curtailed the list of offenses for which bail could be eliminated.

The reforms required judges to offer individuals three forms of bail for eligible offenses, provided a variety of nonmonetary conditions judges could impose to ensure an individual’s return to court, and instructed judges to consider an individual’s “activities and history” when making conditions about pretrial conditions.

Nevertheless, a provision in the bail statutes that impedes efforts to reduce economic inequality managed to survive the 2019 reforms.

That is, judges “may designate different amounts varying with the forms,” a provision that gives judges “limitless leeway” in setting the dollar amount of bail and the different in amount between each option, Chasin writes.

“A common result of prohibitively high partially secured or unsecured bonds, then, is that defendants are unable to meet any of the methods, resulting in their pretrial detention,” he writes.

“This all-too-common result flies in the face of the very purpose of this newly added section of the bail laws.”

Additionally, although New York judges may not consider “dangerousness” or risk to public safety when making bail decisions, the language of the bail law fails to reiterate that message. In fact, judges may look beyond the statute to make bail decisions, representing another opportunity to “read into the statute” whether an individual is a risk to public safety.

Chasin portrays the implementation of the bail reforms as wildly out-of-step with the bill’s purpose.

“The current state of New York’s bail law affords judges nearly unrestricted discretion to set bail at amounts so high that the intention of the reforms to reduce economic inequality in the criminal justice system is easily sidestepped,” Chasin writes.

“Although the new requirement that judges must fix at least one of a partially secured surety bond or unsecured surety bond is a step in the right direction, judges’ unfettered discretion renders the requirement nearly toothless.”

As such, Chasin recommends the New York legislature revamp the bail reform bill by capping cash bail and insurance company bail bonds at certain amounts, creating a presumption that judges set unsecured bonds rather than partially secured bonds, and reducing the maximum percentage of the undertaking that judges may require as an up-front deposit for partially secured bonds.

“In all, this revision to New York’s bail law would meet the Legislature’s goal of reducing how one’s wealth impacts their freedom pending trial, while continuing to ensure that individuals return to court,” he writes.

Additionally, Chasin recommends language be added to the statute that removes public safety and so-called “dangerousness” from judges’ considerations.

Admitting that this proposal may face pushback, he alternatively suggests that the legislature consider requiring judges to reaffirm, on the record or in writing, that they haven’t considered public safety or “dangerousness” when determining the least restrictive conditions to ensure an individual’s return to court.

“Although the revised bail law has already decreased jail and prison populations considerably, a goal of the reforms from the outset, New York’s criminal justice system and its pretrial detention system, in particular, continue to treat most harshly those with the least financial means,” he writes.

The full paper can be downloaded here.

Eva Herscowitz is a contributing writer to The Crime Report.

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