As part of the State’s 2020 Budget, the New York Legislature enacted sweeping changes to the criminal justice system. While a sizeable portion focuses on overhauling the current discovery and speedy trial laws, public attention has gravitated toward the dramatically transformed bail structure. Specifically, monetary release conditions or “cash bail” (e.g., cash, credit card, bonds) have been eliminated for virtually all misdemeanors and non-violent felonies – meaning that persons charged with “non-qualifying” offenses must be released from custody. Additionally, law enforcement officers must issue desk appearance tickets (a formal arrest without being held until arraignment) to individuals charged with misdemeanors and Class E felonies (the lowest class level of felony offenses) in lieu of effecting a custodial arrest unless they have an outstanding warrant, a temporary order of protection is being sought, or a driver’s license suspension is mandated.
That said, mandatory release from custody without bail for non-qualifying offenses does not necessarily mean release without any conditions. If a judicial determination is made that certain measures are necessary to reasonably assure a person will return to court, several non-monetary conditions may be imposed. Non-monetary conditions include pre-trial supervision (e.g., a probation-type monitoring and reporting program), electronic monitoring,2 passport surrender and travel restrictions. And, bail could nevertheless be imposed if a person “persistently and willfully”3 fails to appear in court as directed, commits another felony after being released on a felony, intimidates or tampers with a witness, or violates domestic, family and certain other types of protective orders.4 But when a person fails to appear, a court must wait 48 hours before ordering a bench warrant to provide the opportunity for a voluntary return.5
The legislation purportedly seeks to eliminate pre-trial detention of persons unable to afford modest bail for offenses that will eventually be resolved in non-incarceratory (e.g., probation, community service, rehabilitation programs or fines) or negligible jail sentences because extended incarceration jeopardizes employment, housing, and other life circumstances. Agree or disagree, it distinguishes between crimes unlikely to result in substantial prison sentences (non-qualifying offenses) and those that are (qualifying offenses6). This distinction is largely, though not exclusively, based on the categorization of offenses as either misdemeanors or felonies7 and designation as either non-violent or violent. Regardless of whether a charged offense qualifies for bail, however, judges are required to select the least restrictive alternative conditions that will reasonably assure a person’s return to court.8
Generally, misdemeanors subject a person to less than one year in jail; felonies to one year or more. And, all jurisdictions classify crimes based on the sentencing exposure commensurate with the severity of the prohibited conduct. New York has three classes of misdemeanors; six for felonies.9 Misdemeanors, however, are not statutorily designated as violent regardless of whether the prohibited conduct appears to be. Examples include assault in the third degree, which is intentionally inflicting physical injury,10 obstruction of breathing or blood circulation,11 menacing in the second and third degrees,12 arson in the fifth degree,13 sexual abuse in the second and third degrees,14 sexual misconduct15 and forcible touching.16
Felonies designated as non-violent include reckless and vehicular manslaughter,17 robbery in the third degree, which is using physical force to steal property from another person (without using/threatening use of a weapon or causing physical injury),18 burglary in the third degree, which is entering a building while intending to commit a crime inside (also without using/threatening use of a weapon or causing physical injury),19 rape in the third degree, which is a lack of actual or legal consent,20 arson in the fourth degree21 and, of course, larceny and drug sale and/or possession.22 But the test of whether felonies are designated as non-violent or violent has little to do with whether the prohibited conduct appears violent or the title of the offense. Rather, it is based on the legal gravity of the conduct.
Violent felony designations include murder,23 manslaughter in the first degree and aggravated manslaughter,24 kidnapping,25 robbery and burglary in the first degrees,26 rape in the first and second degrees,27 strangulation in the first and second degrees,28 assault in the first and second degrees29 arson in the second degree30 and terrorism.31 Not surprisingly, all felonies designated as violent are bail qualifying offenses.32
Among the issues precipitated by this legislation is that dangerous people will be summarily released. Perhaps so, but such release is not solely attributable to the new law. New York’s bail law has never permitted consideration of whether a person charged with a crime poses a danger to the community or risk of re-offending (see Criminal Procedure Law § 510.30).33 CPL 510.30 does not, in either its original or amended form, include danger as a factor in bail determinations.34 Understandably, this causes one pause. Indeed, it seems strange and is counterintuitive. It is also rare. In fact, of the fifty states, only New York, Arkansas35 and Pennsylvania preclude its consideration.36 Of the reasons offered, the most prevalent is that it has disparate racial and socio-economic application. Another is that it is tantamount to preventive detention – incarceration prior conviction to eliminate the risk of re-offending. Preventative detention, in its purest form, is a constitutional anathema. Bail, as it were, is intended solely to insure a person’s return to court not indiscriminately incarcerate to prevent recidivism.
Even in conjunction with other factors, authority governing bail decisions does not permit consideration of a person’s danger or risk of re-offending.37 Rather, bail determinations have been and continue to be exclusively based on the likelihood a person charged with a crime will return to court. Factors to be considered in making such determinations include the nature of the charges, a person’s record of criminal convictions, record of failing to return to court, financial ability to post bail, violation of family orders of protection, prior possession or use of firearms, and overall activities and history.38 Whether or not societal threat should be a factor to consider in bail decisions is a continued source of debate. But unless and until the legislature acts to include it in CPL 510.30, bail determinations must be based solely on the likelihood of returning to court. As such, imposition of bail is not necessarily a foregone conclusion even for qualifying offenses.
That said, the new legislation has yielded several perplexing results. In the realm of prior felony convictions, persons charged with a felony after having previously been convicted of a felony within the past ten years plus any time spent in jail. Predicate felons, as they are classified, are exposed to a mandatory state prison term, which means they would not be eligible for a non-incarceratory sentence such as probation. If both the previous and charged felonies are designated as violent, state prison exposure is significantly enhanced. And, two prior violent felony convictions within 10 years renders a person subject to life in prison as a mandatory persistent felon. Misdemeanors, however, have no predicate designation and never serve as a basis for sentence enhancement. For instance, 76 prior misdemeanor convictions would have little or no effect on another misdemeanor conviction. Still, this legislation provides neither an exemption nor the discretion to consider bail for predicate, violent predicate or mandatory persistent felons when charged with non-qualifying offenses.
Other abnormalities include robbery in the second degree (aided by another)39 and burglary in the second degree (dwelling),40 both of which are non-qualifying offenses for bail despite being designated as violent felonies. Strangely, though, an attempt of these crimes is a qualifying offense (emphasis supplied).41 Making a terroristic threat, also a violent felony offense, is specifically exempted from being a qualified offense.42 Drug offenses, possession, sale and trafficking, even involving substantial quantities, are non-qualifying offenses. And, inexplicably, bail is now prohibited even for the crime of bail jumping, an offense charged for failing to return to court.
The legislation does, however, permit the imposition of bail for certain non-violent felonies as qualifying offenses. Such crimes include manslaughter in the second degree,43 criminal sexual act in the third degree,44 aggravated criminal contempt,45 criminal contempt in the first degree,46 incest third degree,47 luring a child,48 tampering with a witness in the first, second and third degrees,49 intimidating a victim or witness in the first, second and third degrees.50 Bail qualifying misdemeanor offenses include sexual abuse in the second and third degrees,51 sexual misconduct,52 forcible touching53 and criminal contempt in the second degree for violating family orders of protection.54
The advent of this legislation has certainly sparked public debate. But having a meaningful conversation about it is impossible without fully and properly understanding the law and the changes it brings.
Hon. David J. Kirschner1
1 - Hon. David J. Kirschner is a judge of the New York City Criminal Court, Queens County. He previously served as a principal law clerk with the New York State Supreme Court and is a former senior assistant district attorney and defense attorney. He is also an Adjunct Assistant Professor of Law at Queens College and has taught trial advocacy at Hofstra Law School’s National Institute for Trial Advocacy, and Cardozo Law School’s Intensive Trial Advocacy Program. He gratefully acknowledges the assistance of Ramandeep Singh, Esq., an attorney with the New York State Unified Court System, in preparing this article.
2 - Electronic monitoring is not yet available in most, if not all, local jurisdictions. Since it must be made available without cost, suitable providers have not yet been procured, and, it may be some time before they are.
3 - Criminal Procedure Law § 530.60(2)(b). Before a judge may impose bail, however, the District Attorney must establish by clear and convincing that the failure to appear was willful and persistent. But as of yet there is no case law defining or specifying what behavior is required to satisfy this standard and whether it must be demonstrated that such failure was intended to avoid prosecution.
4 - Criminal Procedure Law § 530.60(2)(b). Additionally, subsection (2)(a) provides that whenever a defendant charged with a felony while at liberty (regardless of whether on recognizance or bail) commits a Class A or violent felony crime or intimidates a victim or witness in violation of section 215.15, 215.16 or 215.17 of the penal law, s/he may be remanded to custody for seventy-two hours for a hearing to determine whether such recognizance or bail status shall be revoked.
5 - Criminal Procedure Law § 510.50(2).
6 - Criminal Procedure Law § 510.10(4). Under this provision, qualifying offenses include:
(a) a felony enumerated in PL 70.02 except burglary in the second degree (PL 140.25) and robbery in the second degree (PL160.10);
(b) witness intimidation (PL 215.15);
(c) witness tampering (PL 215.11, 215.12 or 215.13);
(d) a class A felony other than in article two hundred twenty of the penal law except section 220.77;
(e) a felony sex offense as defined in PL 70.80, a crime involving incest (PL 255.25, 255.26 or 255.27) or a misdemeanor sex offense as defined in article one hundred thirty of the penal law;
(f) conspiracy in the second degree (PL 105.15) for conspiring to commit a class A felony defined in article one hundred twenty-five of the penal law;
(g) money laundering in support of terrorism in the first and second degrees (PL 470.24 and 470.23, respectively) or a felony crime of terrorism as defined in article four hundred ninety of the penal law except PL 490.20;
(h) criminal contempt in the second degree (PL 215.50), criminal contempt in the first degree (215.51 [b], [c] or [d]) or aggravated criminal contempt 215.52 (violation of CPL 530.11 orders of protection);
(i) facilitating a sexual performance by a child with a controlled substance or alcohol (PL 263.30), use of a child in a sexual performance (PL 263.05) or luring a child (PL 120.70).
7 - “Violations” comprise a third category of offense but are not crimes and do not result in criminal convictions.
8 - Criminal Procedure Law § 510.10(1).
9 - Misdemeanors are classified as “A”, “B” or “Unclassified”; felonies as “A [I & II]” – “E”.
10 - Penal Law § 120.00.
11 - Penal Law § 121.11.
12 - Penal Law §§ 120.14 and 120.15, respectively.
13 - Penal Law § 150.01.
14 - Penal Law §§ 130.60 and 130.55, respectively.
15 - Penal Law § 130.20.
16 - Penal Law § 130.52.
17 - Penal Law § 125.12 – 125.15 (Note that despite manslaughter [125.15] being a non-violent felony, it is nevertheless a qualifying offense for which bail may be set).
18 - Penal Law § 160.05.
19 - Penal Law § 140.20.
20 - Penal Law § 130.25.
21 - Penal Law § 150.05.
22 - Penal Law articles 155 and 220, respectively.
23 - Penal Law article 125.
24 - Penal Law § 125.20 – 125.22.
25 - Penal Law article 135.
26 - Penal Law §§ 160.15 and 140.30, respectively.
27 - Penal Law §§ 130.35 and 130.30, respectively.
28 - Penal Law §§ 121.13 and 121.12, respectively.
29 - Penal Law §§ 120.10 and 120.05, respectively.
30 - Penal Law § 150.15.
31 - Penal Law article 490.
32 - Criminal Procedure Law § 510.10(4)(a) provides that all violent felony offenses are qualifying except for one subsection of robbery in the second degree (Penal Law § 160.10) and one subsection of burglary in the second degree (Penal Law § 140.25). Making a terroristic threat (Penal Law § 490.20), though designated as a violent felony offense (Penal Law § 70.02[c]), is nevertheless a non-qualifying bail offense (Criminal Procedure Law § 510.10[g]).
33 - “Although the criteria were never specified in statutory form in New York before the advent of the CPL in 1971, they are, by and large, the same as have been employed by courts for many years” (Peter Preiser, Practice Commentary, McKinney’s Cons Laws of NY, CPL 510.30) (citations omitted).
34 - Id.
35 - Ark. R. Crim. P. 9.2.
36 - 234 Pa. Code § 523 (domestic violence).
37 - People ex. Rel. Lobell v McDonnell, 296 NY 109 (1946); People v. Saulnier, 29 Misc 2d 151 (Sup Ct, NY County 1985, Booth Glen, J.).
38 - Criminal Procedure Law § 510.30 provides:
- With respect to any principal, the court in all cases, unless otherwise provided by law, must impose the least restrictive kind and degree of control or restriction that is necessary to secure the principal’s return to court when required. In determining that matter, the court must, on the basis of available information, consider and take into account information about the principal that is relevant to the principal’s return to court, including:
(a) The principal’s activities and history;
(b) If the principal is a defendant, the charges facing the principal;
(c) The principal’s criminal conviction record if any;
(d) The principal’s record of previous adjudication as a juvenile delinquent, as retained pursuant to section 354.21 of the family court act, or, of pending cases where fingerprints are retained pursuant to section 306.1 of such act, or a youthful offender, if any;
(e) The principal’s previous record with respect to flight to avoid criminal prosecution;
(f) If monetary bail is authorized, according to the restrictions set forth in this title, the principal’s individual financial circumstances, and, in cases where bail is authorized, the principal’s ability to post bail without posing undue hardship, as well as his or her ability to obtain a secured, unsecured, or partially secured bond;
(g) Where the principal is charged with a crime or crimes against a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, the following factors:
(i) any violation by the principal of an order of protection issued by any court for the protection of a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, whether or not such order of protection is currently in effect; and
(ii) the principal’s history of use or possession of a firearm; and
(h) If the principal is a defendant, in the case of an application for a securing order pending appeal, the merit or lack of merit of the appeal.
39 - Penal Law § 160.10(1).
40 - Penal Law § 140.25(2).
41 - People ex rel. Castano v Fludd, ___ AD3d ___, 2020 NY Slip Op 00604 (2d Dept 2020).
42 - Criminal Procedure Law § 510.10[g]).
43 - Penal Law § 125.15.
44 - Penal Law § 13.40.
45 - Penal Law § 215.52.
46 - Penal Law § 215.51 (b), (c) and (d).
47 - Penal Law § 255.25.
48 - Penal Law §120.70.
49 - Penal Law §§ 215.13, 215.12 and 215.11, respectively.
50 - Penal Law §§ 215.17, 215.16 and 215.15, respectively.
51 - Penal Law §§ 130.60 and 130.55, respectively.
52 - Penal Law § 130.20.
53 - Penal Law § 130.52.
54 - Penal Law § 215.50(3).