Bail Reform: New York’s Legislative Labyrinth
9.29.2020
As part of the 2020 budget, the New York State Legislature enacted comprehensive statutory changes to the criminal justice system.[1] While a portion focused on overhauling discovery and speedy trial laws, much of it was designed to equalize the socio-economic inequities associated with cash bail. Both the governor, in his State of the State agenda,[2] and Senator Michael Gianaris, through the Bail Elimination Act,[3] sought to end cash bail. Instead, the legislature opted for a ubiquitous labyrinth of often vague and confusing mandates, conditions and prohibitions aimed at curtailing the imposition of bail. Immediately – well in advance of its effective date – it triggered vociferous clamor that judicial discretion would be marginalized and public safety jeopardized. Consequently, within months of the statute becoming effective, legislators were constrained to amend it.[4] Still, minor adjustments aside, the legislature left it intact, neither eliminating cash bail nor authorizing consideration of whether an individual poses a danger to the community.
Holistically, the legislation was intended to eliminate pre-trial detention of persons unable to afford modest bail for offenses that will eventually be resolved in non-incarceratory (e.g., probation, community service, rehabilitation programs or fines) or negligible jail sentences because extended incarceration jeopardizes employment, housing and other life circumstances. It distinguishes between crimes unlikely to result in substantial prison sentences (non-qualifying offenses) and those that are (qualifying offenses) based largely on their classification as misdemeanors or felonies[5] and designation as either non-violent or violent. Such designation, however, has little to do with the characterization of the offense or whether the prohibited conduct appears violent. Rather, it is based on the legal gravity of the conduct. It is no surprise, then, that virtually all violent felonies enumerated in section 70.02 of the Penal Law are bail-qualifying offenses.[6] Some non-violent crimes were also designated as qualifying offenses; the amended legislation added approximately 20 others, including several misdemeanors.[7] Regardless of whether an offense qualifies for bail, though, judges must select the least restrictive conditions – monetary or otherwise – to reasonably assure a person will appear in court.[8]
But this legislation has yielded several perplexing results. Robbery in the second degree (aided by another)[9] and burglary in the second degree (dwelling),[10] both violent felony offenses,[11] are specifically excluded from bail eligibility.[12] As amended, burglary in the second degree is a qualifying offense if an individual is “charged with entering the living area of a dwelling.”[13] The legislation provides no guidance, however, as to what constitutes the living area, e.g., whether or not it includes a vestibule, roof or lobby.[14] Oddly, though, an attempt of these crimes is a qualifying offense and the amended legislation did not correct this.[15] Making a terroristic threat, also a violent felony offense,[16] is specifically exempted from the list of qualifying offenses under one subsection yet explicitly included by reference in another.[17] This, too, was not addressed. And, under the initial legislation, bail was inexplicably prohibited for the crime of bail jumping, an offense charged for failing to return to court. Wisely, the amendments now make bail jumping a qualifying offense.
The legislation also indiscriminately handles prior felony convictions. Predicate felons, meaning persons charged with a felony after having previously been convicted of a felony within the past 10 years plus any time spent in jail are subject to a mandatory state prison term. If both the previous and charged felonies are designated as violent, state prison exposure is substantially enhanced. And, two prior violent felony convictions within 10 years render a person subject to life in prison as a mandatory persistent felon. In such circumstances, monetary conditions may be imposed since violent felonies are qualifying offenses. But since this legislation exempts second-degree robbery and burglary (non-living areas of a dwelling) as bail-qualifying, predicate, violent and mandatory persistent felons must be released when charged with these offenses.[18] Nothing in the amended legislation changes this.
Discretionary persistent felony offenders – persons also exposed to life sentences – were not subject to monetary conditions under the initial legislation. Unlike violent and mandatory persistent felons, however, the amended legislation permits the imposition of bail in such cases.[19] The amended legislation also permits bail for individuals charged with a felony offense while serving a sentence of probation or term of post-release supervision.[20] Still, it provides no exemption or discretion to consider bail for predicate, violent predicate, or mandatory persistent felons when charged with non-qualifying offenses.
Unlike felonies, misdemeanors have no predicate designation and may not serve as a basis for sentence enhancement. For instance, 36, 78, or 103 prior misdemeanor convictions would have little or no effect on yet another misdemeanor conviction. While this remains, the amended version permits bail when an individual is charged with two sequential crimes (class A misdemeanors or felonies) “involving harm to an identifiable person or property.”[21] Before doing so, however, the prosecutor must establish probable cause to believe both the instant and underlying crimes were committed. But the statute neither defines “harm” nor provides any guidance as to how, when, and where the prosecutor must make such a showing.
Arguably the most controversial issue precipitated by this legislation, though, is that dangerous people will be summarily released. Perhaps so, but it can hardly be attributed to the new law. New York has never permitted consideration of whether a person charged with a crime poses a danger to the community or risk of re-offending (see Criminal Procedure Law § 510.30).[22] CPL § 510.30 does not, in either its initial or amended form, include danger as a factor in bail determinations.[23] Understandably, this causes one pause. Indeed, it seems strange and counterintuitive. It is also rare. In fact, of the 50 states, only New York, Arkansas[24] and Pennsylvania preclude its consideration.[25] Of the reasons offered, the most prevalent is that it has disparate racial and socioeconomic application. Another is that it is tantamount to preventive detention – incarceration prior to conviction to eliminate the risk of re-offending. Preventative detention, in its purest form, is a constitutional anathema. Bail, as it were, is intended solely to insure a person’s return to court, not a vehicle to indiscriminately incarcerate people as a means of preventing recidivism.
Even in conjunction with other factors, authority governing bail decisions does not permit consideration of a person’s danger or risk of re-offending.[26] Rather, bail determinations have been and continue to be exclusively based on the likelihood a person charged with a crime will return to court. Factors to be considered in making such determinations include the nature of the charges, a person’s record of criminal convictions, record of failing to return to court, financial ability to post bail, violation of family orders of protection, prior possession or use of firearms, and overall activities and history.[27] Whether societal threat should be a factor to consider in bail decisions is a continued source of debate. But unless and until the legislature includes it in CPL § 510.30 – and they have declined to do so – bail determinations must be based solely on the likelihood of returning to court.[28] As such, imposition of bail is not necessarily a foregone conclusion even for qualifying offenses.
That said, mandatory release from custody without bail for non-qualifying offenses does not necessarily mean release without any conditions. If a judicial determination is made that certain measures are necessary to reasonably assure a person will return to court, several non-monetary conditions may be imposed. Non-monetary conditions include pre-trial supervision (e.g., a probation-type monitoring and reporting program), electronic monitoring,[29] passport surrender, and travel restrictions. But failure to comply with non-monetary conditions, even repeatedly, may be met with only more conditions – never bail.
Bail could be set on non-qualifying offenses, however, upon clear and convincing evidence that a person failed to appear in court, intimidated or tampered with a witness, or violated domestic or family protective orders. And, though bail may be subsequently imposed on a non-qualifying felony upon the commission of another felony, inexplicably bail may not be set on the new non-qualifying offense.[30] The statute further provides for the imposition of monetary conditions upon reasonable cause to believe an individual committed “one or more specified class A or violent felony offenses or intimidated a victim or witness” while at liberty.[31] Regarding failed appearances, a court may order a bench warrant but must stay it for 48 hours to provide the opportunity for a voluntary return.[32] And, upon return, monetary conditions may only be imposed if such failure was “persistent and willful,” although this is undefined and unclear.[33]
Before monetary conditions may be imposed, however, the statute requires that a hearing be conducted.[34] Its notice and timing are unspecified, and the distinctive significance between clear and convincing evidence and reasonable cause is elusive. Further underscoring such confusion is whether a hearing is always required before revoking recognizance, release under non-monetary conditions or bail, or only for non-qualified offenses. Given the statutory construction, ostensibly it is. But by any standard, it would be an anathema to require greater stringency in imposing subsequently that which could been done initially. Arguably the most confounding aspect, though, is that except for a 72-hour remand hold on a violent felony offense, the statute provides no mechanism to hold an individual for the purpose of conducting it.[35] Such a dearth of clarity renders compliance arduous and untenable particularly at an arraignment.
The advent of this legislation has certainly sparked public debate that has yet to wane. Whether the objective of eliminating monetary release conditions will be realized remains to be seen, but the controversy and confusion it generated continues.
Hon. David J. Kirschner is a judge of the New York City Criminal Court, Queens County and an adjunct assistant professor of law at Queens College. Previously, he served as a principal law clerk with the New York State Supreme Court, an assistant district attorney and defense counsel. He gratefully acknowledges the assistance of Ramandeep Singh, an attorney with the New York State Unified Court System, in preparing this article.
[1]. 2019 N.Y. Laws, ch. 56, eff. Jan 1, 2020.
[2]. https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/2019StateoftheStateBook.pdf (p.140).
[3]. 2019 N.Y. Senate Bill S7506B, https://www.nysenate.gov/legislation/bills/2019/s2101.
[4]. 2020 N.Y. Laws, ch. 56, as amended, eff. July 2, 2020.
[5]. “Violations” comprise a third category of offense but are not crimes and do not result in criminal convictions.
[6]. Criminal Procedure Law § 510.10(4)(a).
[7]. The legislation initially designated all drug offenses – possession, sale and trafficking – as non-qualifying except for operating as a major trafficker, more commonly referred to as the “drug kingpin” statute (Penal Law § 220.77). Section 510.10(4) of the Criminal Procedure Law contains a complete list of qualifying offenses and notably includes:
Any offense resulting in death (CPL 510.10 [4] [j]),
A-1 drug felonies (CPL 510.10 [4] [d], as amended),
All Penal Law section 70.80 sex offenses and section 255 incest offenses (CPL 510.10 [4] [e]),
Facilitating or promoting a sexual performance by, use or luring of a child (CPL 510.10 [4] [i),
Article 130 misdemeanor crimes – sexual abuse in the second and third degrees, sexual misconduct, forcible touching (CPL 510.10 [4] [e]),
Failure to register as a sex offender (CPL 510.10 [4] [p]),
Aggravated vehicular assault (CPL 510.10 [4] [l]),
Criminal obstruction of breathing or blood circulation (CPL 510.10 [4] [k]),
Unlawful imprisonment of a family member (CPL 510.10 [4] [k]),
Violation of protective orders if committed again against a family member (CPL 510.10 [4] [h]),
Assault in the third degree and arson in the third degree if committed as a hate crime (CPL 510.10 [4] [m]),
Money laundering in support of terrorism (CPL 510.10 [4] [g]),
Enterprise corruption (CPL 510.10 [4] [o]),
Witness intimidation (CPL 510.10 [4] [b]),
Witness Tampering (CPL 510.10 [4] [c]).
[8]. Criminal Procedure Law § 510.10(1).
[9]. Penal Law § 160.10(1).
[10]. Penal Law § 140.25(2).
[11]. Penal Law § 70.02(1)(b).
[12]. Criminal Procedure Law § 510.10(4)(a) provides that a qualified offense is “a felony enumerated in section 70.02 of the penal law, other than robbery in the second degree as defined in subdivision one of section 160.10 of the penal law.”
[13]. Criminal Procedure Law § 510.10(4)(a) provides that “burglary in the second degree as defined in subdivision two of section 140.25 of the penal law shall be a qualifying offense only where the defendant is charged with entering the living area of the dwelling.”
[14]. See People v. McCray (23 N.Y.3d 621 (2014)),)), which held that the non-residential part of a building used partly for residential purposes should not be treated as a dwelling for purposes of a burglary.
[15]. People ex rel. Castano v Fludd, 179 A.D.3d 1087 (2d Dep’t 2020).
[16]. Penal Law § 70.02(1)(c).
[17]. Criminal Procedure Law § 510.10(4)(g) provides that a person is charged with a qualifying felony offense when charged with “a felony crime of terrorism as defined in article four hundred ninety of the penal law, other than the crime defined in section 490.20 of such law” (making a terroristic threat). Subsection (4)(a), however, designates a qualifying felony offense as “a felony enumerated in section 70.02 of the penal law,” which, in defining a violent felony offense, includes class D violent felony offenses and specifically delineates “making a terroristic threat as defined in section 490.20” (Penal Law § 70.02(1)(c]).)),
[18]. Criminal Procedure Law § 510.10(4)(a).
[19]. Criminal Procedure Law § 510.10(4)(s).
[20]. Criminal Procedure Law § 510.10(4)(r).
[21]. Criminal Procedure Law § 510.10(4)(t).
[22]. “Although the criteria were never specified in statutory form in New York before the advent of the CPL in 1971, they are, by and large, the same as have been employed by courts for many years” (Peter Preiser, Practice Commentary, McKinney’’s Cons Laws of NY, CPL § 510.30) (citations omitted).
[23]. Id.
[24]. Ark. R. Crim. P. 9.2.
[25]. 234 Pa. Code § 523 (domestic violence).
[26] People ex. Rel. Lobell v McDonnell, 296 N.Y. 109 (1946); People v. Saulnier, 29 Misc. 2d 151 (Sup. Ct., N.Y. Co.Co. 1985).
[27]. Criminal Procedure Law § 510.30 provides:
- With respect to any principal, the court in all cases, unless otherwise provided by law, must impose the least restrictive kind and degree of control or restriction that is necessary to secure the principal’s return to court when required. In determining that matter, the court must, on the basis of available information, consider and take into account information about the principal that is relevant to the principal’s return to court, including:
(a) The principal’s activities and history;
(b) If the principal is a defendant, the charges facing the principal;
(c) The principal’s criminal conviction record if any;
(d) The principal’s record of previous adjudication as a juvenile delinquent, as retained pursuant to section 354.21 of the family court act, or, of pending cases where fingerprints are retained pursuant to section 306.1 of such act, or a youthful offender, if any;
(e) The principal’s previous record with respect to flight to avoid criminal prosecution;
(f) If monetary bail is authorized, according to the restrictions set forth in this title, the principal’s individual financial circumstances, and, in cases where bail is authorized, the principal’s ability to post bail without posing undue hardship, as well as his or her [27]ability to obtain a secured, unsecured, or partially secured bond;
(g) Where the principal is charged with a crime or crimes against a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, the following factors:
(i) any violation by the principal of an order of protection issued by any court for the protection of a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, whether or not such order of protection is currently in effect; and
(ii) the principal’s history of use or possession of a firearm; and
(h) If the principal is a defendant, in the case of an application for a securing order pending appeal, the merit or lack of merit of the appeal.
[28]. Though the legislature did not provide a “dangerousness” factor in either the initial or amended legislation, the amended version permits the setting of bail when an individual is charged with two sequential crimes (class A misdemeanors or felonies), “involving harm to an identifiable person or property” (Criminal Procedure Law § 510.10 ((4))(t)).)).
[29]. While the initial legislation authorized electronic monitoring as a condition of release, the amendment provides that an individual not be required to pay for it. And, although counties and municipalities may contract with private companies to supply the monitoring devices, only their employees – not the private companies – may interact with monitored individuals (Criminal Procedure Law §§ 500.10(3-a);),510.40(4)()(c)).)).
[30]. Criminal Procedure Law § 530.60(2)(b).
[31]. Criminal Procedure Law § 530.60(2)(a); Robbery in the second degree (aided by another) and burglary in the second degree (dwelling), while violent felony offenses, are specifically designated as non-qualifying. As such, they remain bail ineligible even if committed while at liberty after having been charged with a felony. Criminal Procedure Law § 510.10(4).
[32]. Criminal Procedure Law § 510.50(2).
[33]. As with numerous provisions contained in this legislation, the inherently vague “persistent and willful” standard is neither defined nor explained. Thus far, there is a paucity of cases compelled to address it. Arguably, though, failing to make one court appearance is insufficient, and at least one court determined three missed appearances is required (People v. Chensky, 67 Misc. 3d 373 (Sup. Ct., Nassau Co. 2020, Bogle, J.)). Still, whether it means a defendant must refuse to appear, choose to attend work, see a doctor, sleep late or specifically intend to avoid prosecution is unclear.
[34]. Criminal Procedure Law § 530.60(2)(c) provides that “[b]efore revoking an order of recognizance, release under non-monetary conditions, or bail . . . the court must hold a hearing and shall receive any relevant, admissible evidence.” It may, but need not, be conducted simultaneously with a felony preliminary (probable cause) hearing.
[35]. Criminal Procedure Law § 530.60(2)(e) provides that an individual may be remanded to custody for seventy-two hours for a determination whether recognizance or bail status should be revoked.
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