Relates to the consideration of certain factors when determining the issuance of an order of recognizance or bail

Summary of provisions

Section one renumbers subparagraphs (vii) and (viii) as subparagraph (viii) of paragraph (a) of subdivision 2 of section 510.30 of the criminal procedure law and adds a new subparagraph (vii). This new paragraph requires the court to consider certain factors when determining recognizance or bail in cases of domestic violence such as, prior violations of orders of protection and access to firearms or a history of firearm use.

Section two defines the effective date as the sixtieth day following the date on which it shall become law.

Justification

Domestic violence is a societal problem of enormous prevalence and impact. It has been identified by the Surgeon General of the United States as the number one health problem affecting American women, and it floods the justice system of New York State as well as the courts of every other state in the nation.

New York State has been in the forefront of addressing this problem by passing many progressive laws over the past few decades, including the mandatory arrest law, the law creating the registry of orders of protection, an anti-stalking law, and a law requiring judges to consider evidence of domestic violence in all child custody and visitation cases. However, one important area of the law has not been updated to take into account the unique nature of domestic violence offenses: New York's bail provisions.

As a result, perpetrators of domestic violence offenses are often set free on low or no bail and thereby allowed to stalk, harm and sometimes kill their specifically targeted victims. In December 2002, a perpetrator of domestic violence was released on $1,500 bail by a city judge in Westchester County after an attempted assault with a gun on his former girlfriend. Within days after his release on bail,

the perpetrator shot his former girlfriend in the head and killed himself. As recently as July 2010, a similar tragic incident occurred in Dutchess County when the perpetrator killed his wife before turning the gun on himself. This incident occurred only days after his release on bail, following one month in jail stemming from an incident of domestic violence.

If judges determining recognizance and bail in domestic violence cases were required to consider well established risk factors to the victim such as prior violations of an order of protection and the accused's access to guns, many victims and their children would be spared additional harm and, in some tragic incidences, their lives.

The bail statute currently does not consider the unique nature of domestic violence cases. The criminal who commits a street crime against a stranger, for example, is not likely to target the victim for additional criminal activity while the case is pending and afterwards. Precisely the reverse is true for domestic violence perpetrators, who are highly likely to do so. Those who commit acts of domestic violence do so to exercise power and control over their specific victim, with whom they have a relationship. Domestic violence has a high rate of recidivism, and tends to escalate in frequency and severity over time. The initiation of a court case against the perpetrator is a high-risk time for the victim, who is perceived by the abuser as trying to escape the relationship. Perpetrators often threaten and harm their victims during the pendency of the case in order to force them not to cooperate with the prosecution and to reconcile.

Bail reform is necessary to protect the victim-witness of domestic offenses.

Effective date

This act shall take effect on the sixtieth day after it shall have become law.