Legislative Memo: An Act to amend the criminal procedure law, in relation to the issuance of securing orders

In New York, tens of thousands of people are held in jail prior to trial simply because they cannot afford to post bail. Individuals who have not been convicted of any crime account for 67 percent of the average daily jail population across the state.

For many of these individuals, the inability to post bail leads to pretrial incarceration, with harsh, life-altering consequences—including the loss of jobs, housing, public benefits, and even child custody. The population that suffers the brunt of these consequences are poor people of color. Based on studies, bail practices in New York State have proven to be inherently discriminatory.

The legal justification for requiring an individual to post bail as a condition of release is to address risk of flight—that is, to ensure the individual facing criminal charges appears in court. In New York, however, bail practices involve the routine denial of freedom for individuals who are too poor to pay bail. This practice violates constitutional principles and fundamental fairness.

Bail practices—a driver of incarceration rates statewide

The NYCLU recently published a report analyzing bail practices in eight counties across New York State between 2010 and 2014.1 The findings, based on just eight of the state’s sixty-two counties, include the following:

• More than 90,000 New Yorkers spent a day or longer in custody because they could not post bail;
• More than 45,000 of these individuals were held for a week or longer;
• Black pretrial detainees were twice as likely as white pretrial detainees to spend at least one night in custody on bail;
• More than 35,000 New Yorkers spent at least one night in custody on bail demand of $1,000 or less; more than 21,000 spent a night or more in jail on a demand of $500 or less;
• 60 percent of people held on bail had only a misdemeanor or violation as the most serious charge;
• More than 5,000 New Yorkers charged only with a violation were held in jail on bail;
• The most common charges of those held on bail in jail were petit larceny and misdemeanor criminal possession of a controlled substance, accounting as the most serious charges for one-fifth (about 18,000 individuals) of the individuals held on bail.

Key provisions in the proposed legislation

The proposed legislation, A.10137, seeks to reform New York’s bail statute, consistent with the underlying purpose of the law. The bill would —

• Mandate release of persons charged with most misdemeanors and nonviolent felony offenses, authorizing remand or bail only when the individual charged is deemed a risk of flight from the court’s jurisdiction;
• Require courts to make individualized assessments regarding the necessity of monitoring and supervision to ensure that a person will appear in court;
• Impose limits on the use of electronic monitoring and other conditions of release, with the objective of eliminating a profit incentive from the administration of such monitoring by third-party vendors; and
• Restrict courts subject to the rules of a local jurisdiction from using pre-trial risk-assessment instruments that would have an adverse disparate impact on persons who may be subject to a bail or remand.

Shortcomings of the legislation

The bill, if enacted, would mitigate the impact that current unfair bail practices have on certain alleged offenders. That said, the proposed reforms leave in place provisions in the law that service injustice.

Without apparent justification, the bill would permit the pretrial detention of persons charged with certain crimes simply because they cannot afford to pay bail. The legislation does not require an evidentiary hearing when determining whether remand (i.e., pretrial detention without bail until the case is resolved) may be ordered. Nor does the bill provide for discovery regarding the basis for a prosecutor’s demand for remand. The bill authorizes a judge to set bail in the absence of information regarding a defendant’s ability to pay.

Commercial, for-profit bail bond companies would be allowed to post bail under the proposed reform, notwithstanding the well-documented abuses of the commercial bond industry. Finally, the legislation lacks a provision that would require the collection and reporting of data—including data regarding race, ethnicity, and gender—regarding bail practices.

Proposed amendments to A.10137

The NYCLU urges lawmakers to consider amending the bill to include additional language that would further the objective of eliminating inequity and bias in pretrial criminal proceedings.

• Require that prosecutors seeking remand of an individual demonstrate that no alternative measures will reasonably assure the defendant returns to court

This requirement would afford defendants fundamental due process before being preventively detained. Prosecutors should be required to prove by clear and convincing evidence that a defendant poses a high risk of flight. Prior to an evidentiary hearing on this issue, the prosecution should be required to disclose to the defendant all statements or reports relating to a pretrial detention motion that are in the possession, custody or control of the prosecution, or of a person under the prosecution’s direction and control.

• Require that courts conduct an inquiry on the record regarding a person’s ability to pay when setting bail and set bail at an amount the person can reasonably pay

This requirement would ensure that the amount at which bail is set does not exceed the amount a defendant can reasonably pay. Absent such a requirement, there is nothing to ensure that judges actually inquire as to a person’s financial circumstances when setting bail, and that judges use such information to establish a maximum bail amount. To prevent wealth-based determinations in bail proceedings, it is not sufficient that an individual’s financial circumstances are simply a factor to be considered. The court must make an individualized assessment regarding what a person can reasonably pay and set an affordable bail amount.

• Eliminate insurance company bonds as a means of posting bail in criminal proceedings

The NYCLU recommends prohibiting commercial bail bond companies from posting bail for persons facing pretrial detention. Under this scheme, individuals who lack the funds to post bail pay a non-refundable premium to the bond company. The practice is highly susceptible to corruption and coercion. Both the New York City Comptroller and Gov. Cuomo have observed that the for-profit bail industry has engaged in predatory practices that harm the poor.

The New York City Comptroller recently called for the elimination of commercial bond in bail proceedings. The Assembly legislation prohibits for-profit entities from administering pretrial services. For the very same reason—prevention of corruption and coercion—the Assembly should amend A.10137, to eliminate insurance company bonds from the nine forms of bail authorized by statute.

• Require more rigorous collection of data regarding pre-trial adjudications

The Assembly bill (A.10137) requires the collection of data regarding agencies that provide pretrial services. To ensure transparency and accountability, however, it is recommended that the legislation direct the Chief Administrator of the Courts to oversee the collection and public reporting (on an annual basis) of all pretrial decisions, including detention.

This data should be disaggregated by gender, race, and ethnicity in relation to nature of criminal offenses, the number of individuals released on recognizance, the number of individuals released on non-monetary conditions, including conditions imposed, amounts of fixed bail, the number of individuals with a fixed bail, the number of individuals committed to the custody of the sheriff prior to trial (remand), the length of pretrial detention, incidence of failure to appear and rearrest, and any other such information as the Chief Administrator may find necessary and appropriate regarding pretrial release and detention.