Enacts "Jilly's law"; adds criteria for determining whether to issue an order of recognizance or bail

Summary of provisions

Section 1 states that this law shall be known as Jilly's Law.

Section 2 amends the criminal procedure law to allow for the court to consider a greater number of facts when setting bail. Paragraph a is amended to include language that would allow the courts to consider whether the individual is a danger to the alleged victim, members of the community, or themselves when setting bail. Amends subparagraph (i) to allow the court to consider prior threats of or attempts of suicide. Also amends subparagraph (vi) to allow the court to consider any record of violations of court orders. Adds a subparagraph (ix) that the court may consider any history or pattern of threats or violent acts against the alleged victim, or toward others. Subparagraph (x) allows for any records of protection that were previously issued against the individual, or are currently in effect be considered. Subparagraph (xi) allows for the violent nature of the charged crime to be considered, as well as the impact the crime has had on the alleged victim's family. Subparagraph (xii) states that any other factor deemed to be relevant by the court under the circumstances of the case be considered.

Section 3 adds a subdivision 4 that states that the court may in its discretion order the defendant to use an electronic monitoring device after consideration of the factors specified in paragraph a and that tampering with the device shall constitute grounds for revocation of bail.

Section 4 also adds a subdivision 5 that states that the court may in its discretion deny bail if there is substantial evidence to support the charge and if the court finds clear and convincing evidence that the defendant is not reasonably likely to appear in the court when required, or that the alleged defendant is a danger to the allege victim, members of the community or themselves. This section also states that if bail is denied, the court must place its reasons on the record.

Justification

Currently under New York law, the only factor courts are permitted to consider when setting bail is whether a person charged with a crime will appear in court. This likelihood is based solely on ties to the community, and the likelihood that individual might flee because of the severity of charges brought against them. To that end, courts may consider such factors as the defendant's reputation, criminal record,

and whether he or she has previously failed to appear in court. There is no provision that permits the court to consider the safety of the victim, the nature of the offense, or the impact of the offense on the victim, witnesses, or the victim's family members when determining whether to set bail at all and, if so, in what amount.

New York courts should be permitted to consider such circumstances when setting bail, especially in domestic violence cases where the offender is likely to repeat his or her behavior and ignore restraining orders. An alarming number of women are killed, or attacked in the United States and New York each year by people they have been intimate with. In the United States 32.1 % of all the female murder victims in the country were killed by their husbands or boyfriends. In New York in 2002, 194 women were killed, out of those 66 or 34% were murdered by a spouse, "common law" spouse, or a sexual, or ex-sexual partner.

No case in recent New York history illustrates the need for an amended bail statute more than People v James F. "Jeff" Cahill: In this case Jeff Cahill had viciously attacked his wife Jill with a baseball bat, striking her more then seven times and nearly killing her because Jill was divorcing him. While out on bail for this attack, Jill had requested and been granted an order of protection against Cahill which required him to stay away from Jill and their children. Shortly after his release Cahill began to research ways to poison his wife and eventually was able to secure some potassium cyanide by posing as an employee at a local company. A week before he would murder his wife, Cahill was caught posing as hospital staff in Jill's room. On October 27, 1998 Cahill returned dressed as a janitor and poisoned and killed Jill.

If the court that set bail for Cahill after the baseball bat assault had been permitted to consider the brutal nature of his attack, the resulting injuries, and Jill's safety against future acts of violence by Cahill, Jill might be alive today.

Instead, both the pre and post indictment courts were permitted to apply only the consideration currently addressed by New York State law, whether the defendant is likely to appear in court. Such a limited approach did not protect Jill, and does nothing to protect other individuals in these situations.

Legislative history

S.1401/A.3035 of 2009/2010; Referred to Codes S.112/A.777 of 2007/2008; Passed Senate S.1160/A.275 of 2005/2006; Passed Senate. S.6513/A.10267 of 2003/2004; Passed Senate

Fiscal implications

None.

Effective date

This act shall take effect on the first of November next succeeding the date on which it shall have become a law.