Cornell Law Review

In New York’s statewide court system, once someone is arrested they typically experience what can be an arduous process. For many, that process may involve time spent in jail, regardless of guilt or a conviction. At the heart of that quandary is the use of cash bail. 

For example, let’s say that Tina is a 19-year-old college student in New York City. Tina works a steady job in food service, lives with her mother in government housing, and is arrested for shoplifting a makeup palette. The officers take her down to the precinct, and after her arrest, the arresting officers present information about the case to a district attorney. The District Attorney’s Office will then decide whether to file any charges against Tina. If the District Attorney’s Office decides to proceed with the charges against her, Tina will see a judge for the first time at her arraignment,^{11. Criminal Justice Process, N.Y.C. POLICE DEP’T, https://www1.nyc.gov/site/nypd/services/victim-services/criminal-justice-process.page [https://perma.cc/JXA4-7JNM] (last visited Mar. 9, 2020).} a process that typically takes around twenty-four hours to thirty-two hours from the time of arrest, depending on your location.^{22. James C. McKinley Jr., New York Courts Cut Time Between Arrest and Arraignment, N.Y. TIMES (Mar. 19, 2014), https://www.nytimes.com/2014/03/20/nyregion/new-york-courts-meet-elusive-goal-from-arrest-to-arraignment-in-under-24-hours.html [https://perma.cc/9AUF-P33Y].} At this point, Tina will have missed class and work, and her mother may not know where she is. 

At arraignment, Tina is taken before a judge and either pleads guilty or not guilty to the charges against her. If she pleads guilty, the court can impose a sentence right then or set a later date to do so. If she pleads not guilty, the court must then make a choice: set bail, or release her on her own recognizance, meaning that the court trusts her to meet future court dates without requiring financial assurance.^{33. Criminal Justice Process, supra note 1.} If the court sets bail rather than releasing Tina on her own recognizance, and neither Tina nor her family and friends can afford to pay bail, she will have to wait in jail during the pendency of her case; a process that can take weeks, months, or in some instances, years. As a result, Tina will have to withdraw from or fail her classes, she will lose her job, and upon her eventual release, her mother’s public housing may be called into question, all because she could not afford to post cash bail (money paid as a deposit for the release of an arrested person as determined by a judge who sets the price and types of bail the person is eligible for). Although Tina’s story is a hypothetical, for many New Yorkers her story is their reality—a reality that the New York state government recently attempted to address on two occasions. 

In 2019, New York Governor Andrew Cuomo approved and signed the state’s much anticipated budget into law (the “2019 amendments”). The budget^{44. Neither the state Senate nor Assembly held public hearings on the bail statute because it was included in the budget rather than its own piece of legislation.} included several watershed provisions, one of the most controversial being “sweeping criminal justice reform legislation” that, among other things, eliminated cash bail and pretrial detention for many misdemeanor and nonviolent felony defendants.^{55. MICHAEL RODRIGUEZ & KRYSTAL RODRIGUEZ, CTR. FOR COURT INNOVATION, BAIL REFORM IN NEW YORK: LEGISLATIVE PROVISIONS AND IMPLICATIONS FOR NEW YORK CITY 1 (2019), https://www.courtinnovation.org/sites/default/files/media/document/2019/Bail_Reform_NY_full_0.pdf [https://perma.cc/QR3Q-6WQH].} The bail statute was again amended through the budget in April 2020 (the “2020 amendments”), scaling back the 2019 amendments by significantly expanding the offenses eligible for bail and pretrial detention.^{66. EXECUTIVE BUDGET FINANCIAL PLAN FY 2020, at 304–05 (2020) https://www.budget.ny.gov/pubs/archive/fy20/exec/fp/fy20fp-ex-amends.pdf [https://perma.cc/9VQ8-F8N4].}

The partial elimination of cash bail in New York was not a surprise. Organizations in New York had been advocating for it for some time and Governor Cuomo had stated his support for such a measure in his 2018 State of the State address. He explained at length that “our jails are filled with people who should not be incarcerated. Punishment is supposed to be imposed when one is found guilty. Incredibly 75 percent of the people in New York City jails have not been convicted of any crime. A similar story exists in other jails across the state.”^{77. Video, Audio & Rush Transcript: Governor Cuomo Outlines 2018 Agenda: Realizing the Promise of Progressive Government, GOVERNOR ANDREW M. CUOMO: STATE OF THE STATE (Jan. 3, 2018), https://www.governor.ny.gov/news/video-audio-rush-transcript-governor-cuomo-outlines-2018-agenda-realizing-promise-progressive [https://perma.cc/CPU6-BCQS]. The people whom Governor Cuomo referred to here were those presumed innocent but who had been charged with an offense.} As a result of situations like Tina’s, Governor Cuomo proposed “reform[ing] our bail system so a person is only held if a judge finds either a significant flight risk or a real threat to public safety.”^{88. Id. Notably, the New York state legislature has on three occasions—in 1970, 2019, and 2020—explicitly rejected the use of public safety, or “preventive detention,” as a factor when setting bail. The main argument is that the tools used for determining whether an accused poses a risk to public safety are riddled with racial and economic biases, and are also inaccurate. CTR. ON THE ADMIN. OF CRIMINAL LAW, PREVENTIVE DETENTION IN NEW YORK: FROM MAINSTREAM TO MARGIN AND BACK 29–33 (2017), https://www.law.nyu.edu/sites/default/files/upload_documents/2017-CACL-New-York-State-Bail-Reform-Paper.pdf [https://perma.cc/688H-D5T3].} The version of the bill he eventually signed into law, however, did not fully mirror his proposal. The law eliminated cash bail as intended, but rejected a public safety exception to release.^{99. Beth Fertig, Major Bail Reform is Coming to NY Next Month—Here’s What to Expect, GOTHAMIST (Dec. 11, 2019, 4:00 AM), https://gothamist.com/news/bail-reform-explained-nyc [https://perma.cc/36BY-73K3]. After much lively debate among criminal justice reform advocates, representatives of the district attorneys throughout the state, public defenders, and representatives of police departments, the legislature amended the bail statute through the budget in 2020, expanding the number of offenses that are bail eligible. Jeff Coltin, How New York Changed Its Bail Law, CITY & STATE N.Y. (Apr. 4, 2020), https://www.cityandstateny.com/articles/policy/criminal-justice/how-new-york-changed-its-bail-law.html [https://perma.cc/2QHW-SD8F].} 

The new bail statute has sparked a lively state-wide debate. What is even more interesting, however, is the diminishing frequency in which money bail was used prior to the 2019 amendments to New York bail statute. Indeed, money bail affected a relatively small percentage of those involved in the criminal justice system. The New York City Criminal Justice Agency recently conducted a 30 year analysis of over 5 million pretrial release decisions,^{1010. AUBREY FOX & STEPHEN KOPPEL, N.Y.C. CRIMINAL JUSTICE AGENCY, PRETRIAL RELEASE WITHOUT MONEY: NEW YORK CITY, 1987–2018 (2019), https://www.nycja.org/assets/CJA_RWM_March_2019.pdf [https://perma.cc/43QM-CDUC].} and found that “from 1987 to the present, courts have moved further and further away from the use of monetary forms of pretrial release towards release without money.”^{1111. Id. at 2.} The study showed that New York City reduced its use of money bail by two thirds prior to any legislative reform, and “in 2018 the volume of release without money was more than three times that of money bail. At the same time, [New York City’s] jail population declined, from a high of nearly 22,000 in 1991 to 7,862 at the beginning of 2019.”^{1212. Id.} Between 1987 and 2018, the volume of nonviolent felony cases where money bail was set also dropped from 30,963 to 8,954, and the volume of misdemeanor cases where money bail was set likewise dropped from 17,278 to 11,749. Taken together, over the last 30 years, the percentage of cases in NY in which bail is set has dropped from 48 percent to 23 percent.^{1313. Eli Hager, New York City’s Bail Success Story, THE MARSHALL PROJECT (Mar. 13, 2019, 7:00 AM) https://www.themarshallproject.org/2019/03/14/new-york-city-s-bail- success-story [https://perma.cc/DKV2-GXMB].}

Despite this decline, the use of cash bail continued affecting thousands of people across New York, prompting a vigorous state-wide debate. The aim of this essay is to provide a straightforward and digestible explanation of the new bail statute and its projected consequences for practitioners and non-lawyers alike in the midst of that debate. Part I provides a brief history of bail in the United States and New York State, while Part II provides a plain language explanation of what the new bail statute actually does. Part III discusses several questions arising from the new bill. 

To read more, click here: New York Bail Reform: A Quick Guide to Common Questions and Concerns.