What Is Bail?
Bail is essentially payment made by a defendant to allow them to keep their freedom while waiting for their trial. Prosecutors typically argue that a defendant should not be granted bail at all, or should have bail set at an amount that is impossible for the defendant to pay, asserting that the defendant is too dangerous or untrustworthy to be allowed on the street or counted upon to return to court for trial. The accused defense lawyer typically argues that the defendant should not have to pay bail, or should only be required to pay a small amount, because they are not a danger to society and can be trusted to return to court on their own. When the defendant returns to court, they receive the bail money back. If they don’t return to court, among other consequences, the defendant forfeits any bail money paid.
Judges consider both arguments and decide whether the defendant is likely to return to court without a monetary incentive, and whether the defendant is too dangerous to go free before trial. In deciding whether to grant bail, judges have looked at factors such as the defendant’s prior criminal record and whether the defendant has returned to court without paying bail in any previous criminal trials. New York’s new bail reform law changes much about these practices.
What Does the Law Change?
The Bail Elimination Act of 2019 (https://www.nysenate.gov/legislation/bills/2019/s2101), effective January 1, 2020, was passed to end monetary bill, lower pretrial incarceration rates, and bring greater equality to the criminal justice system.
The new law removes virtually all references to cash from criminal procedure law and creates new rules for pretrial release that do not involve considerations of payment of bail. Judges still have latitude to grant bail, including monetary bail in some cases, but they are much more constrained when it comes to requiring cash bail.
Whether or not a defendant may be released on bail now depends largely on the severity of the crimes they are charged with. Those arrested for less serious crimes such as most misdemeanors and nonviolent felonies are generally not required to pay bail. They may be released on their own recognizance. Alternatively, they may be subject to measures intended to ensure they return to court for the next phase of their trial. These measures may include regular check-ins with the court or pretrial supervision. Some charges are considered serious enough to continue requiring bail payment. For example, crimes including sexual and domestic abuse and violent felonies may still require bail for a judge to grant pretrial release.
3 Effects of the Law
- The Center for Court Innovation (https://www.courtinnovation.org/) estimates that the bail reform law will decrease pretrial jail stays by more than 40%.
- The law has created some controversy. Detractors of the law argue that the law may result in individuals who pose a threat to the public being free to cause more violence. Conversely, proponents of the law argue that it creates a more fair system, no longer penalizing defendants for simply not having access to money.
- Criminal defense lawyers will change their approach to handling their clients’ cases. With the need to argue against bail removed in many cases, defense lawyers are freed to work with their clients without visiting them in prison and to focus on arguing more substantive points central to the client’s case.
Next Steps for Defendants
Those facing criminal charges should call an experienced criminal defense attorney as soon as possible to ensure bail is granted whenever possible and all facets of the case are addressed early and effectively. A good defense lawyer will offer peace of mind and an effective path to guide the case forward to secure the best possible resolution.