On January 1, 2020, New York State’s criminal justice reform legislation went into effect. The new measure eliminates money bail and pretrial detention for nearly all misdemeanors and nonviolent felonies.
The Elimination of Pretrial Detention (“Remand”) and Money Bail
In misdemeanor cases, money (or cash) bail is eliminated except for two types of cases:
- sex offense misdemeanors and
- criminal contempt charges for violating an order of protection in a domestic violence case.
Also, pretrial detention without any bail being set (referred to as “remand”) is eliminated in all misdemeanors.
In virtually all nonviolent felonies money bail and pretrial detention are eliminated. There are limited exceptions, which include:
- witness intimidation or tampering
- conspiracy to commit murder
- felony criminal contempt charges involving domestic violence
- limited number of offenses against children
- sex offenses
- terrorism-related charges
In almost all violent felony cases, money bail and pretrial detention are still permitted.
The limited exceptions include specific sub-sections of:
- burglary in the second degree
- robbery in the second degree
In cases classified as Class A felonies, bail and detention are permitted as most of these crimes involve violence. Note: Bail and detention are eliminated for all Class A drug felonies, except for cases where the defendant operates as a major trafficker.
The Consideration of Financial Resources When Setting Bail
Even in instances where bail remains permissible, the bail reform statute imposes new requirements designed to ensure that defendants can afford the bail amount set by the court.
The court must always set at least three forms of bail and must include a partially secured or unsecured bond—two of the least onerous forms. A partially secured bond allows defendants (or their friends or family) to pay 10 percent or less of the total bail amount upfront; the balance is only paid if the defendant skips court. An unsecured bond works the same way, but no up-front payment is required.
In all situations, the law requires judges to consider each defendant’s ability to pay bail before setting an amount.
During the Pendency of a Case, Judges Are Encouraged to Release Defendants
There are specific parts of the new law which encourages courts to release defendants “on recognizance” while their case is pending. When released on recognizance, defendants are under no restrictions and must simply appear at their appointed court dates. Courts must release defendants on recognizance unless they are a flight risk.
Circumstances Where the Law Allows for Conditions of Release
In those cases where a risk of flight exists, the law requires judges to set the “least restrictive alternative and condition or conditions that will reasonably assure the principal’s return to court.” Alternatives and conditions that may be utilized by courts include:
- Supervised Release
- Enhanced Court Date Reminders
- Travel Restrictions
- Limitations on Firearms or Weapons Possession during the pretrial period.
At a minimum, the law also requires that all released defendants be reminded of any upcoming court appearances by text, phone, email, or first-class mail—and each defendant must be able to select a preferred notification method.
Use of Electronic Monitoring
Under the statute, electronic monitoring can be used only if “no other realistic non-monetary condition or set of non- monetary conditions will suffice to reasonably assure a principal’s return to court.” If ordered, the electronic monitoring is allowed for 60 days (with an option to renew) in the following cases: (1) felonies, (2) misdemeanor domestic violence, (3) misdemeanor sex offenses, (4) misdemeanors where the defendant was convicted of a violent felony in the past 5 years, and (5) a limited number of circumstances where a judge finds that defendants have engaged in pretrial misbehavior.
Stephen J. Riebling, Jr. is a criminal defense attorney and partner with Riebling & Payton, PLLC, located in Westchester County, NY and has been practicing for more than 23 years. To learn more about Mr. Riebling and the firm, visit Riebling & Payton, PLLC at www.WestchesterDefenseAttorney.com.