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‘A Confusing Mess’: How New York's Bail Laws Look from the Bench

Vital City

July 27, 2023

A Bronx judge says the Legislature created a muddle rife with internal contradictions

A Bronx judge says the Legislature created a muddle rife with internal contradictions

In recent years, the debate over New York’s bail reforms, passed in 2019 and amended three times since, has been fierce. Some argue that the reforms — which have resulted in more defendants being released rather than jailed pretrial, and which, unlike 49 other states and the federal system, pointedly did not allow judges to consider a defendant’s “dangerousness” — have been responsible for a rise in crime and recidivism. Others insist that the reforms have had no meaningful impact on crime rates, but have beneficially let thousands of accused men and women await the disposition of their cases in freedom.

A separate but connected question is how the reforms have affected judges’ decision-making process as they set conditions of pretrial detention.

What follows is a trimmed version of an opinion issued on Monday, July 24, by Bronx Criminal Court Judge Jeffrey M. Zimmerman. Zimmerman has previously written that “public debate about bail in New York has become completely divorced from the purpose of the statute” and that “the Legislature needs to speak clearly about the true purpose of bail, instead of continuing to foster confusion.” Here, he publicly struggles to apply the language of the bail law to the case of a defendant accused of firing a weapon at three men, focusing on what he considers the gap between the language of the statutes penned by the Legislature and signed by the governor, and the publicly stated purpose of those statutes.

People v Santiago by Vital City



“Maybe you’ll find direction

Around some corner where it’s been waiting to meet you…”

— Phil Lesh and Robert Hunter, “Box of Rain”

Clearly, the bass player and lyricist of the Grateful Dead have never read New York’s bail reform statutes. Instead of direction, the statutes provide judges with obfuscation and legislative sleight of hand. Faced with a constituency that — justifiably, but incorrectly — assumes that the purpose of bail in New York is to protect the community, but unwilling to join the 49 other states and the federal government in explicitly making that so, our Legislature has instead, with each successive amendment to the bail reform statutes, allowed judges to consider more factors that actually go to a defendant’s “dangerousness,” while still maintaining that the only purpose of bail is ensuring a defendant’s return to court.

The Legislature’s cynical attempt to mollify the public’s concerns about safety, without expressly giving judges the tools to address them, has created a confusing mess.

1. A very truncated history of bail reform

New York’s much-discussed bail reform statute was signed into law by Governor Cuomo on April 1, 2019. It was aimed at drastically curtailing the use of cash bail by eliminating it for individuals charged with most misdemeanors and nonviolent felonies (“non-qualifying offenses”). By contrast, with respect to so-called “qualifying offenses,” the Legislature gave courts broad authority to determine the appropriate securing order including release on recognizance, release under non-monetary conditions, bail or, in the case of qualifying felonies, remand, provided that the court finds the defendant poses a “risk of flight” and selects “the least restrictive alternative” to ensure his return to court.

Significantly, though, the purpose of bail remained bringing people back to court: New York does not allow judges to consider the safety of the community when setting bail.

The Legislature continued to amend the bail law in subsequent years, generally in response to criticism from some quarters that the relaxed rules had led to increased recidivism.

These amendments have colloquially been referred to as bail reform “rollbacks.” In 2020, a number of new crimes were added to the list of “bail qualifying offenses,” including various sex trafficking crimes, all crimes involving the death of another person, various crimes involving strangulation, various assault charges, certain vehicular assault charges, and certain crimes involving sex offender registration and harm to children. Additionally, these amendments authorized bail for any felony charge committed while the defendant was on probation or post-release supervision, any felony committed by a persistent felony offender, and most crimes involving “harm to an identifiable person or property” committed while the defendant was released while charged with a similar “harm” crime.

The Legislature’s cynical attempt to mollify the public’s concerns about safety, without expressly giving judges the tools to address them, has created a confusing mess.

The retrenchment continued in 2022, when the “harm on harm” provision was clarified to include additional theft crimes. Additionally, two firearm offenses were added to the list of “bail qualifying” crimes; judges were expressly allowed to consider whether a charge is alleged to have caused serious harm to an individual or group of individuals” when setting bail; and judges were required to consider a defendant's prior use or possession of firearms when making bail determinations.

The 2023 amendments to the bail reform statute added no new “bail qualifying offenses,” the Legislature apparently having run out of “dangerous” crimes to place into that category.

Instead, the most notable change to the bail law was the removal of the requirement that a court select the “least restrictive alternative” when making a securing order determination. This change was heavily hyped by the governor, who claimed that it would give judges “more authority to set bail and detain dangerous defendants.” However, the ultimate purpose of bail remained not community safety, but making sure defendants show up: judges were instructed to set bail "that will reasonably assure the [defendant’s] return to court.”

Of course, all of these nearly annual changes to the bail statute were done after extensive legislative hearings in Albany, where noted experts in criminal law were invited to share their penological insights about the purpose of bail and their complex mathematical models about the effects of bail reform; stakeholders from all corners of the criminal justice system provided detailed accounts of how bail reform might affect fairness and crime rates; and legislators asked thoughtful and probing questions before they deliberated with their staffs and colleagues.

JUST KIDDING!! None of that happened. Instead, each of these significant changes to laws that have potentially great effect on the liberty of defendants and the safety of the community were passed as part of the state’s budget, a uniquely opaque Albany process that involves glomming obviously non-budgetary items — such as bail reform — onto the passage of legislation required for the state to keep operating.

The result is that bail reform was passed — and then amended — with little thought and even less open debate. The courts are left to interpret an evolving area of the law that was dictated largely by political expediency rather than policy enlightenment, and burdened with much ambiguity and internal inconsistency.

2. What does the end of “least restrictive” mean?

Short answer: not much. The governor’s fixation on removing the “least restrictive means” requirement seemed rooted in her belief that judges somehow didn’t understand all the tools in their bail toolbox and that removing this language would give judges more flexibility to use those tools.

“ ‘I’m going to make sure we have bail laws that give judges the discretion that I believe they should have,’ Hochul said earlier this month. ‘I want to let judges know their responsibilities and make sure that they’re accountable.’ ”

She was wrong, though: Elimination of this language is largely meaningless in the bail context. Even before the “least restrictive means” language was added to the bail statute in 2019, judges were effectively bound by this restriction, since to do otherwise would have been plainly unconstitutional.

Even unencumbered by the “least restrictive means” requirement, a judge simply can't say, “I think $50,000 bail is enough to ensure this defendant's return to court, but you know what? I'm going to set $100,000.”

Bail reform was passed — and then amended — with little thought and even less open debate.

This does not, however, mean that a judge in New York must set bail that a defendant can make. It is true that judges setting bail are required to consider a defendant’s financial circumstances, and ability to post bail or partially secured bond; but that doesn't mean that the bail ultimately set must be attainable. Were that the case, there would, by definition, be nobody held in pretrial detention. Sometimes, as with the defendant in this case, the amount a defendant can afford to post — here, $1,200 — is plainly insufficient to incentivize his return to court.

Therefore, the two amounts — what a defendant can afford to post, and what bail is ultimately set — need not be congruent.

3. The Legislature plays a dangerous game

The recent history of bail reform legislation in New York created a glaring incongruity: While New York continues to be the only state in the country where judges cannot consider community safety in setting bail, almost all the bail law “rollbacks” were expressly related to dangerousness. The amendments added more violent crimes, crimes involving danger to children, sex crimes and crimes involving “harm” to the list of bail-eligible offenses, and expanded the circumstances under which judges could set bail for defendants who committed crimes while already released on pending charges, probation or parole.

Although nobody really knows — or wants to know — exactly how the sausage is made in Albany, you don’t need to get inside the casing to see that the Legislature is trying to have it both ways: they want to mollify those critics who believe that bail reform is letting more dangerous people out to do dangerous things, while still limiting the purpose of bail to making sure people come back to court, foregoing the “public safety” rationale that’s a third rail for the more progressive members of the Legislature.

Criminal Procedure Law § 510.10(1) requires a court to consider certain information that the “Legislature deems relevant to “reasonably assure the principal’s return to court” before setting bail. Some of these factors — e.g., “the principal’s previous record with respect to flight to avoid criminal prosecution” — are aimed directly at whether the defendant is a good bet to come back to court. Others — “the principal’s history of use or possession of a firearm,” or “whether the charge is alleged to have caused serious harm to an individual or group of individuals” — would seem to be factors more appropriate in the 49 other states (and the federal courts) that allow judges to consider community safety when setting bail.

Although nobody really knows — or wants to know — exactly how the sausage is made in Albany, you don’t need to get inside the casing to see that the Legislature is trying to have it both ways.

So, what are judges supposed to make of a legislative scheme that requires them to set bail for the sole purpose of ensuring a defendant’s return to court, but also requires them, in making that determination, to consider factors that clearly go to dangerousness? The language of the bail reform statute, and amendments thereto, focusing almost entirely on making bail available for more dangerous crimes and criminals, leads to only one inescapable conclusion: Yes, judges can consider dangerousness, but only as it goes to likelihood to return to court. This may seem oddly inconsistent, given the ongoing debate in New York about the ultimate purpose of bail, but it's the only way to harmonize the language of the statute, as courts are required to do.

In order to harmonize the language, we also have to accept another truism: The Legislature is instructing us that dangerous people, or people who have done dangerous things, are less likely to return to court. That’s the only conceivable reason for including prior gun use, and the harm done by the instant charge, as factors to be considered in a bail statute expressly limited to ensuring a defendant’s return to court. Since we’re not allowed to consider those factors in order to guarantee the community’s safety, they can only be relevant as indicators of a defendant’s likelihood to return to court. And clearly, the Legislature wasn’t allowing us to consider prior gun use in order to find that somebody who had used firearms in the past is more likely to return to court.

I used to sometimes say, when releasing a defendant on his own recognizance, that I was constrained to do so because “the Legislature doesn't allow me to consider dangerousness.” I now realize that language was imprecise; I should have said that “the Legislature doesn’t allow me to consider safety to the community.” Because I very much can, and apparently must, consider dangerousness. When the Legislature requires me to consider factors relating to dangerousness when setting bail, and annually amends the bail statute to make more violent people and crimes bail eligible, while at the same time insisting that all of this is about returning to court, it is expressly saying that dangerous people who do dangerous things are less likely to return. There is no other conclusion that can logically be drawn.