Date22 September 2020
AuthorGutenplan, Hannah


On January 1, 2020, bail reform laws went into effect in New York that eliminated cash bail for thousands of defendants across the state. In step with other reforming jurisdictions across the country, New York aimed to ensure that a defendant's freedom before trial would not be determined by the individual's ability to pay. Unlike other reforming jurisdictions, however, New York's bail laws do not include public safety as a legitimate factor for judges to consider when setting release conditions. Some domestic violence advocates have expressed concern for victims' safety during the pretrial period in domestic violence cases. This Note explores the potential impact of New York's bail reform laws on domestic violence cases and whether any mitigating measures may be implemented to promote victims' safety.


On January 1, 2020, New York State's criminal justice reform went into effect, aiming to create a more just system through speedy trial, discovery, and bail reform laws. (1) Each part of the reform bill is designed to work together to address mass incarceration in New York's jail and prison system by lowering reliance on incarceration while maintaining public safety. (2) In particular, the bail reform laws eliminate cash bail for most defendants so that defendants are no longer detained before trial solely due to their inability to pay the bail amount. (3) Overall, the criminal justice reform bill aims to reduce the prison population in New York State without sacrificing safety. (4)

In recent years, a movement to end mass incarceration has gained prominence across the country. Civil rights litigator and legal scholar Michelle Alexander published The New Jim Crow: Mass Incarceration in the Age of Colorblindness more than ten years ago, propelling the issue of overincarceration of predominantly young Black and Hispanic men to the national stage. (5) Mass incarceration has been called "the civil rights crisis of our time" (6) and combatting mass incarceration has become a political bipartisan issue. (7)

Pretrial detention contributes significantly to mass incarceration in the United States. Local jails today contain more people awaiting trial than people who have been convicted of a crime. (8) Many of those detained pretrial are held merely because they cannot afford to pay the bail amount for their release. (9) New York State is just one jurisdiction that has pursued criminal justice reform by addressing the cash bail system. In August 2018, then-Governor Jerry Brown signed legislation to abolish California's cash bail system, (10) although a statewide referendum has since stalled the legislation from going into effect. (11) In 2017, the New Jersey Criminal Justice Reform Act took effect, moving New Jersey's pretrial system from a predominantly cash bail system to a risk-based system. (12) Civil rights groups have filed lawsuits in federal courts across the country, attacking municipal bail systems. (13) In 2017, the Federal District Court in the Southern District of Texas granted a preliminary injunction, enjoining Harris County's misdemeanor bail system--the third largest bail system in the country--from detaining defendants who are unable to afford money bail. (14)

Many reforming jurisdictions aim to eliminate or decrease judges' reliance on cash bail but allow judges to either set bail or impose pretrial detention if there is a risk to public safety. (15) An increasing number of jurisdictions use risk assessments to determine whether a defendant should be released. (16) The goal in the risk-based reform model is twofold: to ensure that (1) low risk defendants are not detained pretrial merely because they cannot afford to pay bail and (2) high risk defendants are not released merely because they can afford to pay bail. (17) For example, New Jersey's criminal justice reforms move the state's system away from cash bail by instructing courts to make pretrial release decisions based on a public safety assessment. (18) New York is noteworthy for its move away from cash bail without incorporating a consideration of public safety in pretrial release decisions. (19) New York's criminal justice reform eliminates cash bail for most misdemeanors and non-violent felonies, subject to some exceptions, (20) and includes a presumption of release rebuttable only by a "risk of flight to avoid prosecution." (21)

New York State has taken a significant step toward addressing injustices in the bail context, but some domestic violence advocates criticize the reform out of concern that the new pretrial regime may pose risks for victims of domestic violence. (22) Thousands of New Yorkers report incidents of domestic violence to law enforcement each year. (23) Police intervention has the potential to disrupt a cycle of escalating violence, (24) and some domestic violence advocates credit bail with providing a mechanism to buy time for the victim to exit a dangerous situation and seek help. (25) When an offender is merely processed and released after arrest, however, he is free to return to the victim. (26) When the offender and victim share a residence, that may be the most natural--if not the only--place to go. The immediate release of a violent offender may signal that abuse is not taken seriously as a criminal matter, which may discourage victims from reporting truly dangerous situations. When a change in law has the potential to affect thousands of cases, it is important to evaluate whether the new regime may have unintended consequences that endanger victims' safety.

The recent New York bail reform has the potential to leave some New Yorkers vulnerable to violence during the period between arrest and trial. This Note explores the possible impact of the reform on victims of domestic violence and whether such impact may be reduced through legislative changes or changes injudicial practice. Part I reviews the history of bail and the development of bail reform. It looks at the reform measures in New Jersey as a point of comparison. It also presents the New York bail reform scheme. Part II identifies and explores the ways in which the New York bail reform laws may leave victims vulnerable to violence. Finally, Part III presents potential mitigating measures that could be incorporated into New York's pretrial scheme.

  1. Background

    The administration of bail determines whether a criminal defendant will be released or detained in the time between arrest and trial. In a typical case, a defendant is arrested and arraigned before a judge. (27) A judge sets bail, and if the defendant can post bail or pay a bondsman to post bail, they are released. (28) If the defendant is unable to post bail, they are detained in jail. (29) The traditional theory behind this process is that the payment of bail will ensure the defendant's appearance at trial. (30) The linking of monetary payment and appearance at trial, however, is not an obvious move and contributes to inequities in bail administration. (31) Part I.A recounts the historical background of bail to understand how the bail doctrine developed in the United States and why we may question its continued use. Part I.B presents the current state of bail in the United States. Part I.C introduces the New York bail reforms.

    1. History of Bail Reform

      The practice of setting money bail to ensure a defendant's return to court traces its roots back to medieval England, when the Anglo-Saxon legal system transitioned to a process of settling private disputes by monetary payment rather than blood feuds. (32) To guard against the risk of the defendant fleeing before trial, the legal system required a personal surety--usually a defendant's friend or family member--to pledge to guarantee the defendant's appearance at trial and the payment of the fine. If the accused fled, the surety paid the accuser, rendering a trial unnecessary. (33) Following the Norman conquest, capital and corporal punishment replaced money fines for many offenses. (34) Nevertheless, because the incentive to flee before trial remained, courts continued to require money bail even after the bail amount was divorced from the underlying fee.

      When the colonists settled in America, they imported much of English law, including the laws surrounding bail administration and the practice of releasing defendants prior to trial. (35) The Supreme Court confirmed in Stack v. Boyle that the purpose of bail was to assure the defendant returns to court. (36) The Court held that bail set higher than the amount needed to do so was "excessive" under the Eighth Amendment. (37) Bail developed to mirror the trial outcome in the early English system but it is worth considering whether monetary payment is the best way to accomplish the goals of the pretrial system when a guilty defendant's trial outcome is a jail or prison sentence. (38) Subsequent reform movements in the twentieth century reflect the difficulties of a pretrial system tied to wealth, whether the movements are concerned with the inequitable administration of bail or with public safety concerns.

      Concerns about inequitable bail practices motivated the bail reform movement in the mid-twentieth century. In the 1950s, Caleb Foote studied the administration of bail in New York and Philadelphia and concluded that bail amounts were tied to the severity of the offense rather than ability to pay, leading to many defendants being unable to post bond. (39) Beginning in 1961, the Vera Foundation and the New York University Law School studied alternatives to money bail bonds under the Manhattan Bail Project. Data from the Manhattan Bail Project indicated that money bail was not necessary to assure a defendant's return to court. (40) Based on these findings, Congress passed the Bail Reform Act of 1966, which codified a presumption of pretrial release, introduced non-monetary conditions as an alternative to money bonds, and included "community ties" as a consideration for setting...

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