Revises the procedures regulating the release of persons charged with criminal offenses pending trial

This measure would amend the Criminal Procedure Law to reform the State's bail statutes to: (1) require judges, when making bail decisions, to consider public safety as well as the likelihood that defendant will fail to show at his or her required court appearances; and (2) establish a statutory presumption of release where defendants are charged with non-violent offenses and they present no threat to the community or risk of failing to appear on required court dates.

New York offers special challenges in achieving bail reform. In almost every other state, judges are required by statute to consider public safety when making a bail determination. In New York, they are not required, or even permitted, to do so. Because of this, defendants in New York are screened for their risk of failure to appear in court - using a range of factors such as ties to the community, criminal record, and past failure to appear - but not for the broader risk that the defendant, if released pending trial, will represent a threat to the safety of the community. As a result, defendants may be put back on the street with insufficient regard for public safety. Few, if any, would seriously argue that judges should not consider the safety and well-being of people on our streets or in our homes when making release decisions. This makes no sense and certainly does not serve the best interests of our communities and our citizens.

The time has come to join 46 other states, the District of Columbia and the Federal government by changing New York's bail laws to require judges to take into account public safety considerations. Fixing this deficiency must be a top priority of any revision to our bail statutes. Judges must be authorized to consider public safety as well as the risk of failure to appear for court when making bail decisions. To allow the present situation to continue is bad public policy at a time when we need to do everything we can to be smart, effective and principled, in combating crime and violence in our society.

But this should be just the start of a top-to-bottom revamping of the rules governing bail in our state - a new vision of pretrial justice in New York. Back in 1964, Robert F. Kennedy made a powerful case for bail reform, saying: "Usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money." While, thanks to the efforts of reformers over the years, much has improved in our criminal justice system in New York since Kennedy spoke these words, the reality is that we still have a long way to go before we can claim that we have established a coherent, rational approach to pre-trial justice. Our overriding goal must be to ensure that pre-trial detention is reserved only for those defendants who cannot safely be released or who cannot be relied upon to return to court - and to do all we can to eliminate the risk that New Yorkers are incarcerated simply because they lack the financial means to make

bail. More than simply being unfair, incarcerating indigent defendants for no other reason than that they cannot meet even a minimum bail amount strips our justice system of its credibility and distorts its operation. Jailing defendants before trial can subject them to economic and psychological hardship, limit their ability to assist in their defense and place them at a serious disadvantage in the plea bargaining process. It also places needless costs on our localities at a time when we can ill afford to waste valuable pubic resources.

To avoid these results, our bail statutes must be reformed to make clear that, where defendants are charged with non-violent offenses, there are statutory presumptions that defendants who represent no threat to public safety and no risk of flight shall be released pending trial; and that, whenever defendants are released - whether on bail or not, they will be released with the least restrictive conditions possible unless prosecutors demonstrate that the defendant poses a threat to public safety or a legitimate risk of failure - to appear in court. At the same time, to support judges when they make determinations to release defendants pre-trial, we need to ensure that they have authority to impose a range of release conditions when necessary, such as curfews, drug testing, and substance abuse treatment.

This measure would take effect on November first after it becomes law.

2013-14 Legislative History:

Senate 4483 (Sen. Nozzolio) (Codes) Assembly 6799 (M. of A. Lentol) (Codes)