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
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
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.