CJ Lippman Proposes NY Bail Overhaul

In his State of the Judiciary message, New York Court of Appeals Chief Judge Jonathan Lippman announced a proposal to overhaul New York’s bail scheme, long castigated for keeping poor defendants charged with trivial offenses in jail for the inability to make bail. 

The current bail structure has pushed defendants to agree to guilty pleas to nonincarceratory sentences as a quicker way to get out of jail than fighting the charges.  Better to be guilty and free than innocent and in jail for the year or more that it takes to win. From the New York Law Journal :

“Our overriding goal must be to ensure that pretrial 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,” Lippman said.

But as so often happens with any proposed “correction” to criminal law, one hand giveth and the other taketh away.  The takeaway here, unfortunately, is huge.

The chief judge urged passage of an amendment to the bail statute that would allow judges to consider the risk that defendants will commit additional offenses while awaiting trial in addition to the risk that they will not appear in court.

The current bail statute, Criminal Procedure Law §510.30(2)(a), only permits judges to consider whether bail is needed and sufficient to secure a defendant’s return to court.  The new proposal authorizes judges to enjoy psychic powers, seeing into the future to divine whether a defendant will commit crimes while out. 

On the plus side, the chief judge proposes a presumption that nonviolent defendants be released:

At the same time, he called for the creation of a statutory presumption to make clear that where defendants are charged with non-violent offenses they will be released pretrial with the least restrictive requirements possible unless prosecutors demonstrate they poses a legitimate risk to public safety or of flight.

While a statutory presumption is a step forward, the caveat sucks much of the wind out of its sails. While it’s unclear what showing would be needed to overcome the presumption, it’s fairly easy to imagine that most low-level defendants have a rap sheet in the land of Stop-and-Frisk that will make it easy to show a persistent life of crime, petty though it may be. 

Aside from the problem of more than a few judges lacking the mystical power to do so, for a great many of the same defendants now held inappropriately, who are drug addicts held on possession, the answer is almost invariably going to be that they are extremely like to go out and buy more drugs. They’re addicts. What else are they going to do?  And thus, the new criterion suggests that they be subject to bail again. Problem solved.

The impetus for these changes appear to be the elimination of bail bondsmen, who Lippman sees as a blight on the system.

Critics of the current system complain that it effectively keeps poor people accused of low-level, non-violent offenses in jail because they cannot get bonds for relatively small amounts, such as $1,000 or $2,000. It is unprofitable for bondsmen to deal with such clients, said Steven Banks, attorney-in-chief of the Legal Aid Society.

In his address, Lippman said his reforms would lessen the reliance of the criminal justice system on a bail bond industry that exercises “enormous influence over who is released pending trial and who stays in jail” with “precious little public accountability.”

While the point about bail bondsmen is well taken, the focus seems misdirected. The concern ought to be the defendants held on $1,000 bail rather than the bondsmen who won’t bail them out.  Poor defendants are often considered poor risks, given a lack of sufficient community ties, unstable residences, unemployment, few family ties. 

Even when charged with low-level nonviolent offenses, bail is commonly set at $500 or $1,000, far more money than they can possibly make. Why? These aren’t hardened criminals determined to flee justice, but just poor. The solution has always been at hand, to stop knee-jerk setting bail without any real basis to believe they’re going to abscond. If they can’t make $1,000 bail, chances are they won’t flee to a Caribbean paradise to avoid the consequences of public urination.

Notably missing from CJ Lippman’s explanation is a concern that these same defendants happily plead guilty just to get out.  When faced with $500 bail, which they can’t make, and three days community service and they’re free in minutes, opting for the latter is a no-brainer. Far better to avoid a year in jail awaiting trial than to take a trivial hit. Guilt or innocence? That’s only a concern for people who can afford such luxuries.

And after a plea of convenience or two, the same defendant who would otherwise be subject to the presumption of release now falls into the recidivist category, where the arraignment assistant holds up the rap sheet to demonstrate his risk of committing additional offense. We’re right back to where we started.

One of the pieces of the system that’s too often ignored is that complaints about the current state of affairs doesn’t necessarily mean change will be better. While this proposal certainly means change, particularly by adding a previously unavailable consideration as a reason to impose bail (no doubt as a hat tip to the constant public fear for safety) that will make reasonable bail increasingly more difficult for any defendant charged with a violent crime, and thus a potential threat to community safety, it doesn’t necessarily mean change for the better.

While there is no doubt that something needs to be done about dubiously-needed bail set for the poor that coerces guilty pleas, the problem isn’t evil bail bondsmen and the solution has nothing to do with their elimination.  Judges have always had the ability, indeed the obligation, to set reasonable bail or release, and the answer lies with the use of that authority to stop punishing the poor to keep the wheels of justice grinding. 

As for the new community safety prong, that’s a disaster waiting to happen, where pseudo-omniscient judges and prosecutors will enjoy untestable magical skills to see into the future, making challenges to crimes that have yet to happen impossible to sustain. 

So we have change. It’s just not good change. In fact, it’s likely to be pretty bad change. Happy now?

5 thoughts on “CJ Lippman Proposes NY Bail Overhaul

  1. pml

    Maybe its different up here in Rural upstate, but only 1 in 100 gets any bail set, most of the rest are automatically ROR’d or RUS’d at arraignment. What percentage in the city get bail on Misdemeanors?

    Plus we don’t see bail bondsman here for less than 10K as the closest one is 3 hrs away.

  2. Bk PD

    Our office has been discussing this all day. One thought is that even though judges are not supposed to consider the “dangerousness” of our clients, they’re doing it anyway. The proposed statute would make it explicit- the judge would need to explain the reason why bail was being set, instead of just setting bail and letting everyone guess at what their reason was. While I get your concern at the face of the “reform,” I do think in the end it is a positive development.

  3. SHG

    Why would they have to explain it any more than they do now?  And even if they do, it’s a slam dunk. Got a rap sheet? Recidivist. Charged with a violent crime? Safety of the community. Easy squeezy.

  4. John Neff

    We hold people because they:
    1. are a threat
    2. violated probation or pretrial release conditions
    3. might not appear
    4. failed to pay fines
    5. are unable to make bail
    6. need adult daycare

    My pragmatic view is that nobody where the most serious charge is a simple or serious misdemeanor should be in jail longer than a week.

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