With the new year came a number of changes in criminal prosecutions. One of the most significant changes has been bail reform. Whether you agree with the change or not, there is no question that this is going to have a major impact on the criminal justice system.

Where we were

Before 2020 bail could be set on any case. Some jurisdictions saw bail being set in every type of case, ranging from class “B” misdemeanors to major felonies. When arguing bail, prosecutors cited many factors, including the defendant’s prior contacts with the criminal justice system regardless of the outcome of that case, the defendant’s financial resources, family and community ties, the severity and potential sentence of the current crime, and the possibility that the defendant might pose a danger to society.

At the time, proponents of bail reform argued that bail is not supposed to be punitive, but that it is instead supposed to ensure that the defendant makes every court appearance. They further argued that impoverished individuals were being held in detention facilities on low amounts of bail ($500 – $1000), while more affluent individuals were readily capable of paying bail. Additionally, many times individuals held on bail would end up receiving non-jail pleas at the resolution of their case, but because they could not afford to bail themselves out after their arraignment, they spent the duration of their case in jail. This resulted in indigent defendants being incarcerated in facilities that sometimes posed major threats to their health and well being.

Where we are

As a result, in April of 2019 the NYS Legislature passed legislation that completely revamped the way that bail will be handled in New York. The most significant change will be the amount of people that will be released on their own recognizance following their arrest and arraignment.

Under the new legislation, cash bail can only be set in cases that constitute qualifying offenses. Generally speaking, these offenses include most violent felony offenses, any class “A” felony (with the exception of drug felonies), felony and misdemeanor sex offenses, and a handful of other offenses including witness intimidation, criminal contempt in the second degree, and money laundering in support of terrorism. The notable offenses that bail cannot be set on though, include sections of Burglary in the Second (which includes residential burglaries) and Robbery aided by another individual.

In addition to eliminating cash bail, the new bail law has set up a system where many offenses would result in Desk Appearance Tickets or “DAT’s.” For those of you who don’t know what a DAT is, it’s effectively the same as a summons. The difference between a DAT and a summons, is that a DAT commands the defendant to come back to court for an arraignment on criminal charges.

Generally speaking, when an individual is arrested they are arraigned in front of a judge. Then, bail is determined, and the case is adjourned for a conference date so that the defense attorney and prosecutor can begin plea bargaining. Under the new law though, that first arraignment date can be delayed when a DAT is issued at the precinct instead of having the defendant go through the traditional arraignment route. Whereas issuing DAT’s in the past was discretionary for police officers, now, they are mandatory for most class “E” felonies and misdemeanor offenses, with certain exceptions.

This has some pros and cons. One benefit to this new system will be that defendants will be able to retain attorneys before their arraignment. These attorneys can then contact the prosecutor and hopefully negotiate a disposition prior to the arraignment date. This may result in quicker resolutions to cases that might otherwise drag on for months. Advocates against this new system suggest that this will result in people failing to return to court, and an increase in crime.

What does this mean for the future?

There are a number of arguments coming from both sides of the aisle as to the potential results of these new changes.

Proponents of the changes argue that the streets will in fact become safer as people will no longer experience the negative effects of incarceration, such as job loss, inability to pay rent, and loss of community ties. They further argue that experiencing these effects and other effects of incarceration lead to individuals committing additional crimes when they do get out of jail. For more information on arguments by proponents, click here.

Advocates against the changes argue that the streets are going to become much more dangerous as the threat of incarceration is taken away. They warn that people are going to continue committing crimes after they are released, and that they will go on to commit more serious crimes. In fact, there have been a few instances of this in the media already. See here and here.

Whether you support or oppose this new legislation, it goes without saying that it will yield significant changes to our criminal justice system. Only time will tell what the results will be.