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If you have played Monopoly before, you are aware of the game’s Get Out of Jail Free card. During the board game, if a player unfortunately meets certain conditions, they will be sent to the Go to Jail game tile. However, if the player has a Get out of Jail Free card, then they can get out of jail without having to pay the fee associated with being released.

        While Monopoly is just a board game, in 2019 the New York legislature passed two criminal justice reforms; bail and discovery reform, which makes the Get Out of Jail Free concept more than a game piece. This post will be the first of a series of two. Here, I will focus on the bail aspect of the new law.

        New York Criminal Procedure Law (CPL) Article 520 governs bail and bail bonds. Under New York law, the purpose of bail or bond is to guarantee a defendant’s appearance/return to court by way of a refundable deposit (if they return to court). Before the reform, there were certain factors that the judge, district attorney, and public defender could take into consideration while making a bail argument application. These factors included, but were not limited to:

  1. The defendant’s character, reputation, habits and mental condition; and
  2. Their employment and financial resources; and
  3. Their family ties and the length of their residence, if any, in the community; and
  4. Their criminal record, if any; and
  5. Their criminal record as a juvenile delinquent; and
  6. Their previous record, if any, in responding to court appearances; and
  7. The strength of the case against them; and
  8. The sentence which may be imposed upon conviction.

Previously, these factors applied to all crimes and violations (violations, misdemeanors, and felonies). The judge enforced the final determination after reviewing the evidence submitted along with the district attorney’s and defense attorney’s bail argument. Under the reform, great emphasis was placed on the inherent social-economic discrimination that was placed on minority defendants when compared to nonminority defendants. The reform’s solution was to alter bail arguments, changing them from bespoke arguments to one-size-fits-all. 

Under the reform, the factors that the court shall consider exist, with one caveat; the court must impose the least restrictive means that is necessary for the defendant to return to court. Least restrictive means may include any condition reasonable under the circumstances and specifically, may include restrictions on travel, restrictions on weapons possession, pre-trial monitoring, and electronic monitoring (only available for felonies and domestic violence misdemeanors). 

In other words, a court must release the defendant, unless the court finds some potential of flight risk. If the court makes this determination, then the court must place its explanation on the record or in writing. Here are some of the reform’s factors:

  1. Defendant’s activities and history; and
  2. Defendant’s charges; and
  3. Defendant’s criminal history; and
  4. Defendant’s record as a juvenile delinquent; and
  5. Defendant’s record with respect to flight to avoid criminal prosecution; and
  6. If bail is authorized, the defendant’s ability to post bail without posing undue hardship, as well as their ability to obtain a secured, unsecured, or partially secured bond.

The reform eliminated three considerations: 1) the defendant’s family ties and length of residence, if any, in the community; 2) the strength of the case against the defendant, and 3) the sentence which may be imposed upon conviction. The purpose of any securing order that the judge imposes is solely to ensure the defendant’s return to court.

Under the former law, bail could be placed on any violation, misdemeanor, or felony. It was under the judge’s discretion. However, the reform attempts to combat a situation where a judge is inconsistent in their discretion, setting bail on impoverished defendants and releasing defendants of means or where the defendant incarcerated pending any disposition simply because they cannot afford bail. 

High-profile stories of people like Kalief Browder have brought this issue to the forefront. Mr. Browder was held in the Rikers Island jail at 16 years old for 3 years because he was unable to make bail. Mr. Browder was alleged of stealing a backpack and was released after the district attorney lost contact with their alleged victim. After release, Mr. Browder never rebounded and committed suicide at the age of 22.

The reform attempts to remedy issues like Mr. Browder’s by mandating that bail can only be ordered on qualifying offenses. Qualifying offenses consist of some violent felonies (burglary in the second degree and robbery in the second degree are excluded), all sex offenses, A Felony offenses (excluding drug-related A Felonies), all felony terrorism offenses, all incest offenses, and domestic violence-related criminal contempt. Non-qualifying offenses are mostly composed of misdemeanors and non-violent felonies. If the judge has a non-qualifying offense, no matter the allegations, then the court must release the defendant either under their own recognizance or under the least-restrictive non-monetary conditions.

After the least restrictive means is set, the court must inform the defendant via text, email, or certified mail of their future court dates. Judges are now encouraged to consider a “lessening of conditions” as the case progresses “based on the defendant’s compliance with the conditions of release.” If the judge wants to impose additional conditions, they can only do so after notice and a hearing is held. 

Previously, a judge could issue a bench warrant immediately if a defendant did not appear for court. The reform encroaches more on the judge’s ability by delaying the issuance of a bench warrant for forty-eight hours after notice is provided to the defendant or their attorney.

Repeat offenders have brought the reform under extreme scrutiny. Gerod Woodberry was released, after allegedly robbing four New York City banks, for less than four hours when he robbed another bank. This was the fifth time in 12 days that he either robbed or attempted to rob a bank. Under the reform, a judge could not hold Mr. Woodberry because the allegations were not qualifying offenses. In total, Mr. Woodberry committed 6 bank robberies and could not be held on one.

In response to situations similar to Mr. Woodberry’s, the Legislature amended the bail reform law with a number of changes to begin in July. These amendments expand the crimes that a judge can set bail, and includes crimes committed by a persistent felony offender. With the passing of last week’s groundbreaking laws aimed at advancing police accountability, it will be interesting to see how New York’s bail reform evolves in the future.