The effort to try to fix New York’s disastrous bail reform bill concluded in Albany, NY, at 2:19 am eastern time on Friday morning April 3, 2020.
For the first time in 400 years, and while returning discretion to judges to set monetary bail In appropriate cases, the expansion of preventative detention is the real news.But, unfortunately for the first time since the British conquered New Netherland in 1664, New Yorkers will be subject to the power of the police and prosecutors to detain them and deny their right to bail based solely on lodging a criminal charge.
Highlights of the “fix” are as follows (but really cause more injustice for some defendants):
The New York Assembly voted for in favor of the Governor’s budget that included a so-called “fix” to the bail reform passed last year which has dominated headlines ever since January 1 due to increases in crime and calls for a reversal from law enforcement groups, prosecutors, and many victims’ rights groups.
What was the fix?
Monetary bail was re-introduced into the system for a wide variety of qualifying offenses, mostly felony offenses, along with some small percentage of misdemeanors. Still law is the presumption in favor of the least restrictive conditions of bail. Judges, however, now have discretion as they did under the old system to set bail in what are mostly serious, qualifying felony offenses, which is what the problem with the new system was—to many top-end mandatory get out of jail free cards. Judges are not required of course to set bail, but they are given the tool back within their discretion.
Welcome for the first time, preventative detention.
Significantly, and we would argue unnecessarily, the State of New York for the first time in almost 400 years, will now allow prosecutors to seek preventative detention (deny release and lock up defendants pending trial) in ALL qualified offenses that are felonies, some of which will be non-violent cases. This is a stunning turn of a events for a state that has historically rejected such policies since the Rockefeller Administration and vigorously rejected ever since.
The new law also made a variety of smaller but notable changes. Of interest…no more fees charged to defendants for any pretrial services, which will basically force the re-write of any contract that permits charges to defendants for any services pretrial, whether it be drug screening, ankle monitors, house arrest, drug treatment, etc. The legislation also requires a comprehensive statistical report.
After all of this, this is where we landed?
Ultimately, when all the dust settles on all of the rhetoric about the right to bail, we think New Yorkers will realize a terrible mistake was made, and one that will serve, over time, to erode the right to bail and put continuing pressure on political officials to seek detention or face the wrath of an angry mob. And certainly, to score political wins, every time someone commits a crime while out on bail, bills will be run to increase the government’s power to deny bail. …