By: Sruli Fruchter  | 

Law Review: Get Out of Jail Free or Equality in Criminal Justice?

In pursuit of criminal justice, New York State has implemented legislation to revoke monetary bail and pre-trial detention in many criminal offenses. At the start of January 2020, these legal reforms went into effect. 

Known as the “No Cash Bail” law, N.Y. Criminal Procedure Law § 530.20 was officially passed on April 1, 2019, in hopes of addressing the “failure of our bail system,” according to Gov. Andrew Cuomo. “A person is innocent until proven guilty. And yet, three-quarters of the people being held in New York City jails are awaiting trial… 45,500 people spent time in jail [for five days after bail was set] in New York last year… because they were poor,” he said.

While many have applauded these efforts of criminal justice reform, the law has gained public attention for some of its serious consequences. Brief examples include an alleged hit-and-run drunk driver, a woman who allegedly assaulted 3 Jewish women, and an alleged burglar, all of whom were arrested, charged, and subsequently released on their own recognizance pending trial under this new law.

What this new legislation actually says and its practical applications are complex. Excluding what it classifies as “qualifying offenses,” the statute says a court must release a defendant pending trial on his own recognizance; this is contingent on the court believing the defendant will return. In the event the court doubts that the defendant will return, there are alternative — albeit limited — courses of action. Those options only allow releasing the defendant “under non-monetary conditions, selecting the least restrictive alternative and conditions” that will “reasonably assure” the court that the defendant will return. If that route is, in fact, chosen, the court must document its reasoning on the record or in writing.

Those “non-monetary conditions” can include requiring the defendant to abide by travel restrictions “reasonably related” to him being a flight risk, refrain from possessing a firearm or dangerous weapon, or wear an electronic monitoring device, inter alia.

Nearly all misdemeanors and nonviolent felonies are considered “non-qualifying” in the “No Cash Bail” law, meaning the aforementioned reforms would apply in those cases. Straight pre-trial detention, also known as “remand,” is completely eliminated in misdemeanor charges. Additionally, with the exception of misdemeanor charges of sex offenses or criminal contempt of orders of protection in cases of domestic violence, cash bail is also eliminated. In the case of nonviolent felonies, the legal consequences are virtually the same, as money bail and remand are only applicable in a limited amount of cases. Some exceptional cases include defendants charged with witness intimidation, conspiracy to commit murder, some felony criminal contempt charges, or terrorism-related charges, inter alia.

“Qualifying” criminal offenses are exempt from the “No Cash Bail” law, meaning that money bail and remand are permissible at the court’s discretion. Virtually all violent felony cases are considered under this category, as determined by nine criteria. The Center for Court Innovation succinctly explains that the “No Cash Bail'' law only applies to limited violent felonies, as it mentions, “specific sub-sections of burglary and robbery in the second degree,” a “notable caveat” being “that bail and detention are eliminated for all Class A drug felonies, with the sole exception of operating as a major trafficker.”

While many actively dispute whether CPL § 530.20 is endangering the welfare of American society or is a long-overdue reform to the criminal justice system, it is important to note that the motivations behind the new statute are not unfounded. Cases like Walker v. City of Calhoun, 2016 U.S. Dist. LEXIS 12306 comes to mind when thinking about the state of incarceration in America.

In 2015, Maurice Walker was arrested in accordance with O.C.G.A. § 40-6-95 (2017), a misdemeanor for being a pedestrian under the influence (PUI) of alcohol or drugs. His bail was subsequently set at $160, a payment his monthly income of $530 of Social Security disability payments could not meet; he spent six days in jail following his arrest. Ironically, the law itself does not even warrant jail time, rather it says a PUI “is punishable upon conviction by a fine not to exceed $500.00.” Shortly after, Calhoun changed its policy to allow those unable to afford bail to see a judge within 48 hours in order to request lower bail or their release on their own recognizance. Nevertheless, Walker’s initial legal suit against Calhoun continued, challenging the constitutionality of even a 48-hour waiting period. Ultimately, the 11th Circuit Court of Appeals in Atlanta upheld the 48-hour policy, and the Supreme Court of the United States denied the petition on appeal.

Other cases surrounding criminal justice reform include People ex rel. McManus v. Horn, 18 N.Y.3d 660 and State v. Hance, 2006 VT 97 where the Supreme Court ruled that the court cannot designate a fixed form of bail, and cash-only bail was — at least in this case — considered a denial of bail, respectively. These are only two examples of the abundant cases surfacing in which the function and application of bail are being challenged.  

New York State is not the first state to implement a “No Cash Bail” law, nor will it be the last. Nevertheless, in the righteous pursuit of establishing fairness and equality in our criminal justice system, we must equally ensure that our safety and the integrity of our legal system are preserved and protected.

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