City Bar Urges Bail Reform in 2019 NYS Executive Budget

The New York City Bar Association supports efforts by Governor Andrew Cuomo and the State Legislature to fix New York’s two-tiered bail system, which jails thousands of New Yorkers each year solely because they are unable to afford bail.

In a report issued jointly by its Civil Rights, Corrections & Community Reentry, Criminal Courts, Criminal Justice Operations and Juvenile Justice Committees, the City Bar commends Governor Cuomo’s Executive Budget proposal to reform the bail statute (A.9505-A/S.7505-A, Part C), but also notes concerns about the proposal. The report highlights model provisions that can be drawn from the Assembly one-house budget bill (A.9505-C, Part C) and Senate bill S.3579-A (Sen. Gianaris).

The Executive Budget proposal includes encouraging provisions that the City Bar supports, including, in particular, the elimination of monetary bail for misdemeanor and nonviolent felony charges. The proposal makes further positive changes to the law, including requiring judges to impose the least restrictive release conditions necessary to reasonably assure a defendant’s return to court, requiring judges who impose bail to set a minimum of three forms of bail (including either an unsecured or partially secured bond), and requiring judges to explain their choice for imposing bail or non-monetary conditions on the record. The proposal also requires automatic bail reviews for those unable to pay and evidentiary hearings for individuals facing preventive detention.

The City Bar cautions, however, that more is needed “to ensure (1) that freedom before trial is the norm, not the exception, (2) that profit motivations are removed from pretrial practices, and (3) that race and wealth are not factors in pretrial decisions” and recommends that the proposal be modified to, among other things:   

• require that courts set bail at an amount defendant can afford, and that bail reviews occur within 24 hours of detention on bail;
• revise provisions allowing for automatic pre-hearing detention by permitting such detention only where a prosecutor shows a likelihood of success on the preventive detention motion;
• require that preventive detention hearings take place within two days of pre-hearing detention rather than five days;
• revise provisions permitting preventive detention upon re-arrest by permitting revocation of release only for re-arrests for class A offenses, violent felony offenses (including felony domestic violence offenses), or specified witness intimidation offenses;
• revise provisions permitting preventive detention for willful failure to appear in court on any charge by limiting such detention to those who willfully and persistently fail to appear in court;
• eliminate the motion-practice exception to the 180-day limit on preventive detention;
• eliminate commercial bond from the nine forms of bail that judges can impose; and
• require that pretrial services be provided only by public or non-profit entities.

Recommendations also include eliminating the requirement that defendants pay for electronic monitoring; requiring that any risk assessment tool used to assess flight risk be free of discriminatory and disparate impact; and including a provision for data collection and reporting on pretrial decisions.

The City Bar urges the Legislature to adopt these recommendations in its efforts to reform the state’s bail system. “New York must enact comprehensive bail reform that, consistent with the U.S. Supreme Court’s instruction, will ensure that ‘liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.’” United States v. Salerno, 481 U.S. 739, 755 (1987).

The full report and complete list of recommendations can be read here: http://bit.ly/2HGE47n.

About the Association
The New York City Bar Association, since its founding in 1870, has been dedicated to maintaining the high ethical standards of the legal profession, promoting reform of the law and access to justice, and providing service to the profession and the public. The Association, through its 24,000 members, continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities. www.nycbar.org