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Bail Reform in New York State


Beginning in 2020, New York will allow most criminal defendants charged with misdemeanors and non-violent felonies to remain free until their trial date without posting bail. The Bail Elimination Act of the New York Criminal Procedure Law takes effect in January 2020, and it will operate as a major reform that affects not only the defendants who will be released without posting bail, but also defendants for whom bail will still be required.

Every single day, over 12,000 people languish in New York jails without having (yet) been convicted of the offense for which they are being charged. Imagine the following scenario: A suspect is arrested and charged with a crime, and bail is set at $50,000. Since the defendant is too poor to make bail, he remains in jail until trial. At trial, the jury acquits after 20 minutes of deliberation – after the defendant has spent several weeks in jail for a crime he didn’t commit.  

It is this scenario that New York’s bail reforms are designed to avoid. The law is highly controversial, with proponents touting its enlightened approach to criminal justice and jail overcrowding, while critics predict disastrous consequences. 

How Bail Works

Under the U.S. Constitution, a defendant is presumed innocent until proven guilty. But if a defendant is presumed innocent, how can incarcerating that person in jail pending trial be justified? The traditional justification is that, since it is possible that the defendant will miss his trial date out of fear of prosecution, the defendant needs to be detained to ensure his presence at trial.

Under most circumstances, an alternative to detention until the trial is bail – the defendant deposits a certain amount of money with the court, which he loses if he fails to show up for his trial (regardless of whether he is ever convicted). If the defendant cannot post cash bail, he can seek the assistance of a bail bondsman who might use the defendant’s property as collateral or seek the assistance of the defendant’s friends or family. Some people cannot afford bail, however.

The Arraignment

An arraignment is a court proceeding in which bail is set for the defendant. Under most circumstances, the arraignment occurs within 24 hours after the defendant’s arrest. This means that, even if he ends up paying bail, he may have already spent the last 24 hours in jail. Under certain circumstances, a defendant may be released prior to his arraignment and the arraignment may be delayed beyond 24 hours after the arrest.

Bail-Free Offenses

As of January 1, 2019, people charged with the following offenses must be released from custody with no bail requirement: 

  • * Third-degree assault
  • * Bribery
  • * Coercion
  • * Criminal possession of a weapon on school grounds
  • * Criminal possession of a firearm
  • * Criminal sale of a firearm to a minor
  • * Second and third-degree burglary
  • * Criminally negligent homicide
  • * Aggravated vehicular homicide
  • * Second-degree robbery
  • * Third-degree robbery
  • * Second-degree manslaughter
  • * Aggravated vehicular assault
  • * Promoting an obscene sexual performance by a child
  • * Resisting arrest
  • * Hindering prosecution
  • * Jury tampering
  • * Money laundering

According to Critics…

According to estimates, New York’s pretrial jail population will shrink by about 40 percent once the new law comes into force. Critics fear that:

  • Witnesses will be so intimidated by the possibility of retaliation by non-incarcerated defendants that they will refuse to cooperate with the prosecution, making it impossible to successfully prosecute many guilty defendants.
  • Many crimes will go unreported, because witnesses do not wish to be pressured to cooperate with the prosecution while the defendant is still on the streets.
  • Defendants will simply refuse to show up at trial.
  • Defendants will commit additional crimes while awaiting trial. This concern is particularly acute in the case of someone charged with, for example, vehicular manslaughter (because many such defendants are alcoholics who will inevitably continue driving while intoxicated) and drug dealing (because defendants are likely to return to their former “vocation,” if only to earn enough money to hire a lawyer).
  • The new reforms will increase the proportion of law enforcement resources that must be devoted to tracking people down who skip their court dates.
  • Prosecutors will charge people with crimes that are more serious than the crimes that the prosecutor believes they have committed in order to allow them to be subject to bail requirements.    
  • Courts will dilute the effect of bail reform by holding more defendants under “remand” (detention without bail) where the law allows this.
  • The deterrence effect of the criminal law will be reduced, since the only immediate consequence faced by many defendants will be the functional equivalent of a traffic ticket, followed by ample opportunity to flee the jurisdiction.

By contrast, proponents of bail reform point out that:

  • Bail reform will make overcrowded jails less likely.
  • Incarcerating fewer people will save the state a lot of money.
  • Defendants will be able to continue working and supporting their families prior to trial, protecting many innocent family members of some of the harsher aspects of the justice system.
  • Defendants (especially those who are not guilty, or who are guilty of only minor crimes) will be less likely to lose their jobs and/or their apartments. 
  • Low-income defendants will be treated more equally as high-income defendants.
  • The new system is simply fairer than the current system, since criminal defendants are presumed innocent.

How the Law Works

The following are some of the main features of New York’s bail reform law:

Bail-Free Offenses by Type of Crime

  • Bail will no longer be required in misdemeanor cases, except for sex offenses and violations of a domestic violence protection order.
  • Bail will no longer be required for non-violent felony charges, with exceptions for certain charges such as witness intimidation, conspiracy to murder, and sex offenses.
  • Violent felonies will still be subject to bail requirements, except for a very limited number of charges involving robbery and burglary.

When Bail Is Permitted

  • Even when bail is permitted, the judge must consider the defendant’s ability to pay when determining the amount.
  • A judge has three choices when setting bail: (i) secured bail, in which the defendant pays 100 percent upfront, (ii) partially secured bail, in which the defendant pays 10 percent upfront and forfeits this amount plus the other 90 percent if he fails to appear in court, and (iii) unsecured bail, in which the defendant pays nothing upfront but forfeits all of it if he fails to appear in court. Until now, the latter two forms of bail have been rare. However, the new law encourages judges to use them more often.

Restricted Release

  • If bail is not required, courts must release defendants until trial with no restrictions (such as ankle bracelets) unless there is a significant chance that the defendant will flee the jurisdiction before trial (a “risk of flight”).
  • If money bail is not required but the defendant still poses a risk of flight, the court must select the “least restrictive alternative” when setting conditions on the defendant’s release. This might include a prohibition against leaving the state or a ban on possessing firearms, for example. The judge must explain his decision in writing.
  •  Defendants must be reminded of upcoming court dates through various methods such as text messaging.
  • A 48-hour grace period will be instituted when a defendant fails to show up for court, during which time no bench warrant will be issued against the defendant and the defendant can voluntarily return without penalty.
  • Limitations will be placed on the use of pretrial electronic monitoring. 
  • The court may revoke its original release conditions (by requiring money bail, for example) if the defendant commits certain types of misbehavior such as attempting to intimidate a witness, repeated failure to appear in court, etc.
  • Pretrial Services Agencies will be created in every New York county to supervise defendants released under supervision before trial.

Desk Appearance Tickets

Desk Appearance Tickets (DATs) are issued, if at all, by the arresting officer before the defendant’s arraignment (within 24 hours of the arrest). In this case, the arraignment will be set within 20 days and the defendant will go free until the arraignment. The issuance of DATs is expected to dramatically increase in response to the new bail reforms.

Two types of defendants are eligible for DATs:

  • Defendants charged with misdemeanors; and
  • Defendants charged with Class E felonies (the least serious type of felony).

Certain types of defendants are not eligible for DATs:

  • Domestic violence defendants;
  • Sex offense defendants;
  • Defendants charged with escape from custody or bail-jumping offenses;
  • Defendants who might be penalized with suspension or revocation of their drivers’ license (such as DUI defendants);
  • Defendants with a history of skipping court dates; and
  • Defendants who cannot prove their identity.

You Don’t Want to Be a Step Too Slow

A New York criminal prosecution is a very deadline-sensitive process, and missing an important deadline could result in consequences that range from the inconvenient to the disastrous. If you have been freed on bail, it may be somewhat easier for us to work with you, but we are perfectly capable of visiting you in jail if you are unable to make bail.

If the State of New York is prosecuting you for a crime, either with or without bail, you are going to need the help of an experienced defense lawyer as early in the process as possible. Contact Hacker Murphy, immediately, online, or call us to set up a free initial consultation. We maintain offices in AlbanyColonieSchenectadySaratoga, and Troy.