Bail Reform in New York: Where Do We Go From Here?

This post is an updated version of an editorial originally printed in the Fall 2018 issue of St. John's University School of Law's newspaper, The Forum.

Bail reform is sweeping the nation. California recently passed legislation ending the use of cash bail, functionally eliminating the bail bond industry. New Jersey similarly eliminated the use of money bail in 2017. In New York, bail reform has been a subject of intense debate, but appears to have temporarily stalled. Governor Cuomo has repeatedly called for ending the use of cash bail, but legislation designed to overhaul New York’s bail system did not make it into the 2019 New York State Executive Budget, which was approved earlier this year. So, bail reform remains an open question in New York. Therefore, it is worth considering where we should go from here, and whether New York should follow in New Jersey and California’s footsteps.

What both California and New Jersey have in common is that, in overhauling their problematic bail systems, they replaced cash bail with an even less appealing alternative. In both states, the cash bail system has been replaced with one that requires judges to consider each person’s individual risk and then determine whether that person should be detained or released pending trial. This determination includes considering a person’s “dangerousness.” Detaining someone pre-trial based on their dangerousness is called “preventive detention,” and such determinations frequently rely on “risk assessment instruments” (RAI’s) that critics argue appear objective but have the potential to perpetuate racial bias in pre-trial detention decisions. 

In both New Jersey and California, when persons are not preventively detained, judges may now impose probation-like pre-trial release conditions if the court is not convinced the person will return to court. These conditions could include mandatory drug testing, electronic surveillance, curfews, and/or reporting requirements. Remember, this all happens before a person has been convicted of a crime. So, the end of cash bail in California and New Jersey came with a significant trade-off. Judges in both states now have increased authority to order pre-trial detention based on findings of dangerousness, and even when they do not order pre-trial detention, they can still impose burdensome pre-trial release conditions.

In light of the trade-offs California and New Jersey made in eliminating cash bail, Governor Cuomo’s calls to eliminate cash bail in New York begin to seem less palatable. Here’s the thing: as written, New York’s bail laws are excellent. Significantly, preventive detention is impermissible in New York. Criminal Procedure Law § 510.30, which provides the governing criteria for bail determinations, does not authorize judges to consider a defendant’s dangerousness. It states that the only purpose of bail is to “secure [the defendant’s] court attendance when required.”

In addition, Criminal Procedure Law § 520.10 authorizes nine different forms of bail. The two most restrictive – cash bail and insurance company bail bonds – are the two most commonly used forms and the two forms that most people think of when they think of bail. However, § 520.10 also authorizes partially secured bonds, where the accused or a surety posts a percentage of the bail amount, up to 10% (e.g. if bail is $50,000, the defendant would pay $5,000 upfront), with a promise to pay the full amount if he or she fails to appear in court. § 520.10 even authorizes judges to set bail in the form of unsecured bonds, which do not require any upfront payment at all, on the condition that the accused or a surety promises to pay the full amount in the event of his or her non-appearance.

The New York State Legislature intended that the various alternative forms of bail codified in § 520.10 would provide a mechanism for reducing the pre-trial detainee population. See Bellamy v. Judges in N.Y.C. Criminal Court, 41 A.D.2d 196 (1st Dep't 1973). The idea was to provide judges with flexibility so that they could ensure defendants would return to court, without detaining defendants before trial solely due to their inability to post bail. The hope was that the statute, by authorizing judges to relax the form of bail rather than its amount, would result in fewer people being detained because of their inability to pay.

The passage of time has revealed that the Legislature that enacted § 520.10 was overly optimistic. The Independent Commission on New York City Criminal Justice and Incarceration Reform, led by The Honorable Jonathan Lippmann, former Chief Judge of the New York Court of Appeals, has noted that “judges routinely allow defendants to post only the two most onerous forms–cash bail . . . and insurance company bond[.]” The Vera Institute of Justice has made the same observation, noting that “most judges choose to impose the two most onerous forms: cash bail and insurance bail bond.”

Significantly, studies have shown that unsecured and partially secured bonds are just as effective at guaranteeing court attendance as requiring the full payment of bail up front. One pilot study in New York City found that when partially secured or unsecured bonds were used, not only did more people make bail at arraignments, but the rates of re-arrest and defendants failing to appear were the same as when cash bail or an insurance bond was set. 

Additionally, in early 2018, the Mayor's Office of Criminal Justice, Office of Court Administration, and NYPD, in conjunction with behavioral economics firm ideas42 and the University of Chicago Crime Lab, began experimenting with "nudges," simple text reminders of court appearances for people who receive summonses. Early results indicate that the text reminders have been shown to cut failure-to-appear rates by 26 percent, potentially preventing thousands of warrants each year. And when paired with a re-designed summons form, the text reminders decreased rates of failure-to-appear in court by 36 percent.

So, while ending cash bail sounds like a great proposal in theory, we should focus on encouraging judges to make better use of the full range of alternative bail options at their disposal. The New York State Legislature has already provided judges with many of the tools they need to ensure the accused’s appearance in court, while also ensuring that people are not detained before trial solely because of their inability to post bail. Additionally, we should focus on developing innovative ways of ensuring court appearances, such as the text reminder pilot program. If ending cash bail in New York means instituting a regime of preventive detention and more onerous pre-trial release conditions, we should seriously consider whether that trade-off is worth it.