Bail Change Highlights Effective January 1, 2020, the reforms in NYS laws governing bail have been dramatically revised. For Misdemeanor bail, requiring the posting of money bail disappears with only two exceptions: (1) sex offense misdemeanors, and criminal contempt involving domestic violence. Statistically, it is estimated that about 90% of people arrested for misdemeanors will no longer have to post cash bail. Equally important, pretrial detention (“remand”) disappears.
For Felonies, both cash bail and remand remain permissible but options are to be considered including release on the defendant’s own recognizance or non-monetary conditions such as pretrial supervision. Generally, if a felony is non-violent, bail and detention will not be applied (except for cases involving sexual activity with children), whereas for violent felonies, 9 criteria apply. One estimate of the number of violent felons that will have bail/pretrial detention imposed is about 90%, so the change there is minimal.
When bail is set, alternative forms of security are available, and at least three forms of bail must be set. These include a "partially secured" bond allowing one to pay 10 % or less of the total bail amount. If the defendant disappears, only then will the balance have to be paid. The " unsecured bond" works the same way, but no money at all is put down.
Also, in order to impose bail now, judges have to consider ability to pay, hardship imposed, and availability of getting any kind of bond. Courts are also encouraged to use release on one's own recognizance (ROR) pending case outcome.
The bail reform law also favors courts to release defendants on ROR while their cases are pending unless they pose “a risk of flight.” It is still improper for a court to base an accused's perceived future dangerousness or risk to public safety as a reason to deny ROR.
Where a risk of flight exists, judges must set the “least restrictive” non-monetary conditions to ensure appearances, and must explain their decision “on the record or in writing.” Examples include supervised release, additional court date reminders, travel restrictions, and limitations on firearms or weapons possession. The court can only order supervision when less intensive conditions cannot reasonably assure court attendance. Other points of interest • the courts must now certify one or more agencies in the county, public or nonprofit, responsible for supervising defendants release with non-monetary conditions.
• Notices of appearance dates shall now be available by text, phone, email, or first-class mail as selected by the defendant's preference.
• Electronic monitoring, where allowed, can be used only if no other realistic non-monetary condition(s) is available, and if more than 60 days, requires renewal after a subsequent court hearing. Importantly, such status counts as being "in custody" for purposes of applying the laws which impose time limits of six days from arrest to grand jury action in felony cases or five days from criminal court arraignment to the filing of corroborating documents in misdemeanor cases.
• The new law prohibits courts from issuing a warrant for 48 hours whenever a defendant fails to appear, unless the defendant is charged with a new crime or there is evidence of a “willful” failure to appear, enabling one's attorney to locate and advise the defendant to return voluntarily.