3.18 - V. Bail

• Jurisdiction: New York

V. BAIL

Neither the United States Constitution nor the New York State Constitution guarantees a right to bail. Each prohibits the setting of excessive bail.⁴²⁸ The right to bail in New York State is thus statutory under CPL art. 500.⁴²⁹

The United States Supreme Court, the New York Court of Appeals and other courts have held that bail fixed within a defendant’s financial means is not per se reasonable. Bail fixed beyond a defendant’s means is not per se unreasonable. To prevent flight, bail must be set in a sum sufficient for that purpose, but no more than that which is suitable to that purpose. Bail is irrelevant to an apprehended bomb thrower—he is not bailable. Neither is an accused whose flight is reasonably assessed as guaranteed. Dangerousness or guaranteed flight are not factors in fixing the amount of bail. They have no relationship to a defendant’s ability to post bail. A remand, not astronomical bail, is called for here.

One bail practice recurs without noticeable comment or challenge. If an indictment is dismissed because as a matter of law the evidence before the grand jury was legally insufficient to establish the offenses charged or any lesser included offenses,⁴³⁰ but a court authorizes resubmission of the offenses, such authorization is deemed to constitute an order holding the defendant for the action of the grand jury with respect to those offenses.⁴³¹ “Such order must be accompanied by a securing order,” that is, personal recognizance, bail or a remand, “pending resubmission of the case.”⁴³² “Such securing order remains in effect until the People issue a statement that there will not be a resubmission, arraignment on a new indictment, the filing of a grand jury dismissal notice or the expiration of 45 days from the first indictment’s dismissal.”⁴³³ Might there be a statutory definitional conflict, maybe a constitutional one, where a man against whom no...