What is Bail Reform – A 1,000 Word Summary

By Marc R. Pallozzi, Esq. of Ianniello Anderson, P.C.  ©2019

The news and social media have been drawing a lot of attention to the New York Bail Reform Laws passed in April of this year.  The majority of what we’ve read include quotes from local District Attorneys and law enforcement officers about how the new laws will endanger public safety.  Many people on social media have been comparing the new laws to the blockbuster – ‘The Purge’ – a 2013 horror film where all crime is legalized for 12 hours.


While the bail reform changes are certainly noteworthy, they’re not quite that dramatic.  For those interested, here is a brief summary of what the current laws are, and what the changes will mean.


What is Bail?

Bail, in New York, is some sort of collateral, whether it is cash or a bond to guarantee a defendant is going to show up to Court.  The law has always been and continues to be that Courts are only supposed to require bail where there is some reason to believe a defendant is not going to show up to Court when directed.  Sometimes a Judge is unfamiliar with a particular defendant, so there is a list of criteria under the Criminal Procedure Law that a Judge can use to help determine whether the accused will show up.  But, again, the sole purpose of bail is to secure a defendant’s attendance when the Court directs them to be there.


In the vast majority of cases, defendants show up.  If a defendant does not show up when directed a Judge can issue a bench warrant for their arrest.


Where bail is set, the accused pays the amount in cash, and they get to go home.  When the case is over, the defendant gets their cash back minus 3%.  If a defendant elects to post a bond, they typically do so through a bail bondsman. Defendants pay the bail bondsman a fee, the bondsman posts the bond, and the defendant gets to go home. The fee paid to the bondsman is not refundable.


Where bail is set, and a defendant cannot afford it, they are sent to the County Jail to await their next court appearance.  Depending on the charges or the Court, that can be weeks or months spent in jail – innocent.


Who are Defendants?  

Defendants are those accused of crimes.  Accused of a crime does not mean convicted of a crime.   The U.S. Constitution affords each of us the presumption of innocence (and restrictions on excessive bail).  A defendant is innocent until proven otherwise.   A defendant does not have to prove their innocence.  A defendant does not have to prove anything.  A prosecutor has to prove a defendant is guilty beyond a reasonable doubt.  The Bail Reform Laws do nothing to change the penalties or sentences for being convicted of a crime.


When someone is arrested and charged with a crime, they are innocent.


If you have read this far, you are probably thinking “but law enforcement officers do not arrest innocent people.”  True they don’t, not on purpose anyway.  On the whole law enforcement officers do a terrific job with the information they have or the actions they observe.  But sometimes officers do not have all of the information, sometimes the information changes, sometimes the conduct does not fit the elements of the crime, and sometimes officers make mistakes.  Law enforcement officers are human. For this reason the criminal justice system includes defense attorneys, prosecutors, and Judges.  If everyone who was arrested was guilty, there would be no need for the judicial system.



Current Bail System (until 1/1/2020):

Judges are the people who decide whether or not to set bail.  Judges are elected officials.  Judges have wide discretion in determining bail.  A local Town/City/Village Judge can set bail on any defendant accused of any crime in any amount they feel is appropriate.  A Judge is not required to take into account any specific criteria when setting bail, nor is the Judge required to consider the financial circumstances of a defendant when determining bail.


Judges, like law enforcement officers, like (most) lawyers, are human beings.  Human beings have opinions, biases, and flaws.  For these reasons bail is not uniformly applied by all Judges, in all courts, on all crimes, and all defendants.


There are three different types of criminal charges: violations (serious), misdemeanors (more serious), and felonies (most serious).


Felonies are split up into 5 classes – E through A, with A being the most serious.  Felonies are also categorized into violent felonies and sex felonies.  Violent felonies and sex felonies are considered aggravating because they include intentional acts and victims.  The distinction is important under the Bail Reform Laws.


Bail Reform Law (1/1/2020):

On 1/1/2020, cash bail is no longer permitted on nearly all misdemeanor charges, and non-violent felonies.  This reform takes away a lot of the discretion Judges formerly had.


In line with the presumption of innocence, defendants accused of most crimes are now given a mandatory -benefit of the doubt- they will show up to Court when directed.  This includes crimes that the public often view as newsworthy.


The reform still permits cash bail for defendants accused of a “qualifying offense” including:

  • a sex offense;
  • a violent offense (with one exception that does not involve actual violence against a person);
  • criminal contempt where underlying allegations involved domestic violence;
  • witness intimidation or conspiracy to commit murder;
  • terrorism related offenses.


For all other crimes, the reform acts like a “one strike and you are out” policy.  If a defendant is charged with a non-qualifying offense, and released without bail, but-

  • persistently and willfully fails to appear in their case;
  • violates an order of protection;
  • intimidate a witness; or
  • gets charged with any felony while they have a felony pending,


Bail can now be set, and many of the protections of the Reform go away.


Additionally, while a Judge is limited in what offenses they may set cash bail on, they still have the discretion and authority to set non-monetary conditions on nearly all defendants accused of nearly every crime.  Specifically, if a Judge believes releasing a defendant “will not reasonably assure” their return to Court, the Judge can order non-monetary conditions, including electronic monitoring, check-ins with the Department of Probation, and other reasonable restrictions.