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Understanding Bail in New York

Posted By Sullivan & Brill, LLP || 14-Oct-2015

When it comes to the inner-workings of the criminal justice system, there is no other component more integral but less understood than bail. The main reason for this confusion is that each state has its own way of handling the bail process. For example in New York State, bail is typically imposed in 2 forms: cash or bond. In other words, following a bail hearing or an arraignment, a judge will set two numbers – one for cash and one for bond.

As an example you may hear a bail judge order the following bail conditions: “Bail is set in the amount of $5,000 cash and $15,000 bond. The cash number is exactly that – in this case $5,000. If that particular amount is paid in cash, the defendant will be released. However, that amount of cash cannot be raised, a defendant will have the option of seeking a bail bondsman who, for a fee, will front the money for the bail. That number is usually set higher than the cash number. Depending on the bondsman, collateral may or may not be required. But rest assured, the bondsman will stay on top of the case and make sure that defendant reports to court when it is scheduled.

But let’s back up. What is the reason for bail? Why does it exist? The answer to that is this: bail is determined when the court addresses whether a defendant is a risk of flight (will he skip and not return to court) or a danger to the community. Should the court answer yes to either one or both of those questions, bail is set to address those concerns. However, the one thing bail is not is punitive. In other words, bail is not punishment for the crimes charged. But, that doesn’t mean the charges are irrelevant. In other words, if one is charged with a violent felony, for example, the argument is that they would have more of a reason to flee and given the nature of the crime, and the surrounding circumstances, have more potential to be a danger to the community.

But even so, the lines get blurred. I have experienced over-zealous prosecutors who seek high bail even without reasonable belief that the defendant is a risk of flight or be a danger to the community. If one tallies up the cases that I handled, a sheer minority of cases of individuals failed to return or committed a new crime while out on bail while the majority of clients showed up each and every time they were ordered to and stayed arrest-free while out.

Furthermore, the bail judge is empowered to decide bail in other ways as well. In New York State court, a Judge has the power to release a defendant on “ROR” or “released on his own recognizance.” If someone is released ROR, no money or bond is required. They are told simply to return to court when instructed to do so. On the flip side, if a charge is serious enough, the judge may remand the defendant – which means, there is no amount of bail that will assure the defendant’s return or prevent their danger to the community. Usually remands are used for defendants charged with Class “A” felonies like Murder or Kidnapping.

Recently, bail reform has been reborn in New York. Judge Lippman, the Chief Judge of New York has called New York’s bail system “intolerable.” And has recommended that the New York bail system change with the goal of releasing more defendants and avoiding unnecessarily holding someone in on bail where less restrictive alternatives exist. For example: First, a senior judge in every borough will review every misdemeanor case in which a defendant fails to pay bail. If deemed to be too high, bail will be reduced.

Second, he will have felony cases reviewed so that if trial does not quickly occur, bail will be reduced.

Third, similar to federal court, he will allow defendant’s charged with misdemeanors to wear bracelets and be electronically monitored and connected to a cell phone.

Finally, he will ask New York City judges to accept “partially secured bail bond” that allows a down payment to the court with a credit card in order to avoid paying all the cash or paying high fees to bail bondsman.