The issue of how bail is determined and how bail is paid were addressed this week. The Conference of Chief Justices just adopted a new resolution calling for an overhaul to the way in which individual states' court systems determine bail for their pre-trial defendants. Also, a pilot program implemented with the New York Criminal Court has been expanded to allow for some credit card bail payments.

According to a resolution made by the Conference of Chief Justices, judges reviewing new arrests should use an evidence-based assessment to determine if a defendant is a danger to the community and is likely to appear at scheduled court dates. Today, a bond schedule is used. The so-called “top to bottom” bail determination overhaul, called for by New York Chief Judge Jonathan Lippman, is meant to protect the public and create increased fairness to lower income defendants whose cases are pending adjudication, explained The New York Law Journal. The Conference agreed to the resolution last week at its mid-year meeting in Puerto Rico.

At Judge Lippman's 2013 State of the Judiciary message, he spoke to judges, attorneys, and other elected officials, calling for a "coherent, rational approach" for a "vitally important part of the criminal justice system that has been untouched by reform," according to The New York Law Journal. Critics of today's system argue that it is constructed to ensure poor people accused of low-level, non-violent offenses remain in jail. These defendants are typically unable to secure bond for smaller amounts—$1,000, $2,000—and bondsmen tend to not work with these clients given that there is no profit, said Steven Banks, Legal Aid Society attorney-in-chief. "Our overriding goal must be to ensure that pretrial detention is reserved only for those defendants who cannot safely be released or who cannot be relied upon to return to court—and to do all we can to eliminate the risk that New Yorkers are incarcerated simply because they lack the financial means to make bail," Judge Lippman said.

To accomplish this, the chief judge is seeking passage of the bail statute amendment to enable judges to consider that defendants may commit more offenses while waiting for trial or may not appear in court, and that a statutory presumption be created to clarify how non-violent offenders are handled. For instance, explained The New York Law Journal, in cases in which a defendant is changed with a non-violent offense, the defendant would be released—pre-trial and with the least restrictive requirements—unless prosecutors demonstrate that the defendant presents a true flight or public safety risk.

The chief judge also proposed that supervised release programs constructed with pre-trial defendant monitoring provide defendants with critical services. The proposed programs would cost $3,100-$4,600 per defendant, a substantial savings over the current $19,000 cost for pretrial detention, The New York Law Journal wrote. Some 30,000 people are held in local jails at any given times, the chief judge pointed out. In Kentucky, the supervised release program has saved that state some $31 million in lower detention costs since 2005.

The judge also called for testing to determine what would happen if profits were taken out of the equation, citing The Bronx Defenders, a group that created a fund to help low-income defendants make bail. In both programs, said Lippman, defendant participants returned to court at a rate of 90 percent or more. The Unified Court System and the Center for Court Innovation are collaborating on the creation of a supervised release program in New York City for misdemeanor defendants now being detained, said Lippman, wrote The New York Law Journal.

In a later interview with The New York Law Journal, Lippman noted that should these proposals be enacted, the New York bail bond industry would be "basically irrelevant…. It's a travesty that judges, prosecutors, don't make decisions about a person's liberty, that they're made on the basis of a profit-making money enterprise." Lippman added, "That that's the person who has in many instances the critical role in determining a person's liberty is outrageous. This is not something we can be proud of." His proposed reforms, said Lippman, would lessen the reliance of the criminal justice system on a bail bond industry that exercises "enormous influence over who is released pending trial and who stays in jail" with "precious little public accountability."

Meanwhile, last March, the New York County Criminal Court implemented a six-month pilot program in which bail by credit card payment was accepted. Last month, the Criminal Court began accepting credit card bail payments in all five New York counties, according to the State of New York Unified Court System. Because of fees the Court describes as “significant,” when accepting credit cards, the clerk's office will now accept credit card bail up to and including $2,500. To accept bail via credit card payment, the judge must designate that credit card bail is an acceptable method of bail payment for that specific case and must also designate what amount is being set for payment by credit card; the Court must annotate the court back, as well, said the State of New York Unified Court System.

The Court pays 1.7 percent of the total of each credit card transaction to a payment processing company; however, the Court is permitted to charge a “reasonable” administrative fee to the bail poster. It remains unclear if the Court or another governmental entity would receive the fee, and the Court is attempting to resolve this open issue, said the State of New York Unified court System. Depending on the outcome, an administrative fee might be charged to cover processing costs, which might raise the current $2,500 cap on credit card bail. The Court is also looking into use of a third-party vendor to accept credit card payments, which would eliminate the Court's need to directly charge an administrative fee. That work is being conducted in collaboration with the Office of the State Comptroller.

The criminal defense attorneys at Sullivan & Brill understand that the bail process is an important one. Very often family and friends of defendants charged with a New York State or Federal Crime are working hard to raise bail. Also, once bail is raised, there are often questions of the way in which the bail can be posted and potential risks of posting the bail.