New York's Bail Reform: Everything You Need To Know

New York's Bail Reform: Everything You Need To Know

In April 2019, New York enacted its historic Criminal Justice & Bail Reform laws. Touted as a way of leveling the playing field between defendant’s who can afford bail and those who cannot, it has come under scrutiny since January 1, 2020, when the law actually took effect. Here’s what you should know about what the law actually does.

Misdemeanor Offenses

The new law eliminates cash bail entirely for nearly all misdemeanor crimes. There are, however, a few exceptions:

• Misdemeanor sex crimes (such as forcible touching),

• Criminal contempt in the second degree (e.g. violating an order of protection) where there is an underlying allegation of domestic violence.

Notably, the use of straight pre-trial detention (also known as remand) has been eliminated entirely on all misdemeanors.

Felony Offenses

Here is where the law applies a little differently. at its most basic, the new law eliminates cash bail for almost all ‘non-violent’ felony offenses (NVFOs). Cash bail remains an option for almost all ‘violent’ felony offenses (VFOs). There are nine instances where cash bail remains viable:

1. ALL Violent Felony Offenses (VFOs) except

   • BURGLARY in the Second Degree (subsection 2): When a person enters or remains unlawfully in a building with the intent to commit a crime AND the building is a dwelling (people live there).

   • ROBBERY in the Second Degree (subsection 1): When a person forcibly steals property AND they are aided by another person who is actually present.

2. Felony Witness Intimidation. Penal Law section 215.15. (Nonviolent)

3. Felony Witness Tampering. Penal Law section 215.11, 12, 13. (Nonviolent)

4. ALL Class A Felonies except Operating as A Major Drug Trafficker. Penal Law section 220.77

   • Note: Almost all Class A felonies are violent, i.e. murder, except for 5 Class A drug felonies.

5. All Felony Sex Offenses. These include rape, incest, sexual abuse and others. (Most of these are also considered VFOs).

6. Conspiracy to Commit Murder.

7. Terrorism Offenses.

8. Offenses Against Children. Specifically:

   • Facilitating a sexual performance by a child with drugs or alcohol. Penal Law section 263.30.

   • Use of a child in a sexual performance. Penal Law section 263.05.

   • Luring a child. Penal Law section 120.70(1).

9. Criminal contempt in the first degree (e.g. violating an order of protection) where there is an underlying allegation of domestic violence.

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Other important things to know:

• Judges must consider a defendant’s ability to pay.

• At least three bail options must be offered and must include either a secured or unsecured bond.

• Alternatives must also be considered like supervised release, or other such conditions.

• There is now a 48 hour grace period before a judge can issue a bench warrant. (Allowing the defendant’s attorney time to contact the defendant to arrange a voluntary return to court). With the exception of willful failures to appear or commission of a new crime.

• Electronic monitoring allowed for up to 60 days in certain cases.