Introduction
“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”1 Writing for the Supreme Court majority in the 1987 case United States v. Salerno, Chief Justice Rehnquist conjured up this utopia; however, the reality in the United States has become quite the opposite. Federal and state jail and prison populations have skyrocketed since the 1970s.2 In particular, there has been a marked increase in the number of individuals imprisoned in jails pretrial and thus before conviction,3 largely through the use of financial conditions of pretrial release like bail.4 In its simplest form, bail is an amount of money or property established by a judge at arraignment, which a criminal defendant may post to remain out of jail during the proceedings leading up to and including trial.5 Judges typically fix bail to ensure that the individual appears in court when necessary.6 Declining to post bail or, more commonly, lacking the financial means to do so, means that the state or federal government will incarcerate the individual during the pendency of their trial.7
The Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required,”8 but its text is silent on whether there exists an absolute right to the opportunity to post bail. After the 1984 Federal Bail Reform Act explicitly permitted preventive detention,9 the Salerno Court reiterated that the Eighth Amendment’s bail clause does not convey an absolute right to bail.10 In upholding the 1984 Federal Bail Reform Act as facially valid, the Salerno Court held that the reach of the Eighth Amendment’s bail clause goes only so far as to prohibit the imposition of bail that is “excessive” given the circumstances.11 In short, a criminal defendant does not have an absolute right to the opportunity to post bail; it is constitutional for the federal government to incarcerate an individual pretrial without giving them the chance to meet financial conditions of release.12 The State of New York, in its state constitution, adopted language substantively identical to that of the Eighth Amendment to the United States Constitution,13 and the New York Court of Appeals has long confirmed the lack of a constitutional right to bail.14
The State of New York has contributed substantially to nationwide pretrial detention populations.15 Throughout 2019, sixty percent of the New York jail population consisted of individuals incarcerated not for the conviction of any crime, but instead because they could not make bail.16 These numbers become even more staggering when trained on New York City in particular, where almost ninety percent of people arrested for misdemeanors cannot post bail set at one thousand dollars or less.17 As startling as these figures might be, the repercussions of imprisonment for failure to post bail extend far beyond one’s actual period of imprisonment pending trial. Not only are individuals held on bail nine times more likely to plead guilty to a misdemeanor than those free pending trial,18 but spending time confined in jails or prisons19—particularly in pretrial detention—begets lifelong deleterious effects.20
The tragic experience of Kalief Browder captured the conscience of New Yorkers and Americans alike,21 as the many broken aspects of our criminal justice system, including New York’s pretrial detention mechanisms, converged on Mr. Browder to steal his life.22 On May 15, 2010, an officer arrested Mr. Browder, a sixteen-year-old Black kid from The Bronx, after Mr. Browder was accused of stealing a backpack.23 Mr. Browder’s bail was set at three thousand dollars, an amount beyond his and his family’s financial means.24 As a result, he was confined to Rikers Island, a notoriously violent jail complex,25 during the pendency of his trial.26 In spite of the Sixth Amendment’s speedy trial guarantee,27 Mr. Browder spent over three years on Rikers Island pretrial, about two years of which he dwelt in solitary confinement.28 On May 29, 2013, after Mr. Browder had already suffered years of mental and physical abuse, and after surviving attempts to take his own life, he was released from Rikers Island; after over three years, the District Attorney decided to drop the case, deeming it too weak to take to trial.29 Although Mr. Browder was finally freed from Rikers Island, sans guilty plea or conviction,30 his life was irreparably altered.31 On June 6, 2015, Mr. Browder took his own life at the age of twenty-two.32 This chilling excerpt further illustrates the tragedy:
“He may have hung himself, but the strings were pulled by the system,” Venida [Browder] once said. This is a reality that Kalief Browder’s mother lived with every day: that her son didn’t take his own life so much as submit to a weight he carried with him out of the hole. The imagery sticks: Kalief’s body, the cord around his neck, its other end disappearing somewhere in the depths of Rikers Island.33
Mr. Browder’s death wrought by the icy steel hands of New York’s criminal justice system precipitated the State’s newfound effort to reform its racially34 and economically discriminatory bail system.35
In April 2019, New York State enacted sweeping reforms to its criminal justice system set to take effect on January 1, 2020.36 Among the goals of these reforms, the State intended to diminish economic inequality in its bail and pretrial detention systems. Before turning even three months old, these reforms reduced the pretrial prison population in New York City by forty percent: as of March 5, 2020, about three thousand people were in New York City prisons awaiting trial, down from nearly five thousand people at the time of the reform’s enactment.37 Progress notwithstanding, just months after the new bail law had taken effect, the Legislature enacted a series of amendments, restoring the bail law somewhat closer to its original state before the April 2019 reforms.38
This Note will analyze how, despite the fact that New York’s bail reforms reduced city and state prison populations, the revised bail law falls flat in its attempt to resolve the economic inequality in the State’s pretrial detention system—an overarching purpose of the reforms.39 Part I of this Note will chronicle the turbulent recent history of bail reform in New York and will describe the key differences between the old bail laws, the reformed bail laws, and the amendments to those reforms. Part II will analyze how the current state of New York’s pretrial detention system does little to address the Legislature’s goals. After assessing the shortcomings of the newly minted—and subsequently reminted—bail law, Part III of this Note will offer solutions to ensure that the bail law achieves its intended purposes. These solutions will focus on securing an individual’s return to court and reducing pretrial detention, while also ensuring that an individual’s wealth does not decide their freedom while they await trial.
I. Background
A. New York’s Bail History, in Brief
Bail and pretrial detention are far from novel tools of “criminal justice”; their usage spans thousands of years.40 In New York, the recent bail reform efforts are not the first time New Yorkers have focused their radar on this ancient aspect of the criminal justice system.41 Bail reform efforts in New York have roots that stretch to the 1960s and beyond.42 After learning of—and expressing horror at—New York City’s prison population in 1960, Louis Schweitzer, a retired chemical engineer and businessman,43 teamed up with Herbert Sturz, a magazine editor, to found the nonprofit Vera Foundation,44 known today as the Vera Institute of Justice.45 The Vera Foundation’s initial iteration had one primary mission: to create a bail fund geared toward shrinking New York City’s rising pretrial prison population.46 Though this bail fund would help some individuals gain a semblance of freedom before trial, it would never resolve the underlying issues wrought by New York’s harsh bail system.47 This realization brought about the Manhattan Bail Project. The Project identified indigent defendants who posed little risk of flight to avoid prosecution. It then recommended to judges who should be granted release through the pendency of their trial.48 This study quickly proved a reliable tool—perhaps as reliable as bail itself—in predicting and ensuring an individual’s return to court.49 A year before the Manhattan Bail Project concluded operations, New York City institutionalized the Project’s release on recognizance procedures in the Office of Probation.50
In the years following the efforts of the Vera Foundation and the Manhattan Bail Project, the issues of bail and, in particular, preventive detention remained at the forefront of the conversation around criminal justice reform.51 Throughout the 1960s and 1970s, advocates split on whether the State should allow judges to impose preventive detention because the individual posed a risk to public safety,52 or whether the practice should be outlawed.53 Studies have shown that the consideration of public safety or “dangerousness” can function as a proxy for racism, as judges are more likely to find nonwhite defendants more “dangerous” than white defendants.54 Although New York opted not to allow for preventive detention on the basis of public safety, the vast majority of jurisdictions nationwide—both federally and at the state level—allow preventive detention on this basis.55 Although the Supreme Court in 1987 declared preventive detention on the basis of risk to public safety constitutional,56 New York remains, to this day, in the scant minority of states prohibiting the practice.57 In the years since, the question has thus morphed from whether preventive detention is constitutional to whether preventive detention is fair and just.
B. New York’s 2019 Bail Reforms
1. Political Context of the 2019 Reforms
“Akeem, I want you to know that your brother did not die in vain,”58 then–New York Governor Andrew Cuomo vowed to Kalief Browder’s brother during his 2018 State of the State address, promising to rectify New York’s cruel criminal justice system.59 Among an array of criminal justice reforms, Governor Cuomo specifically proposed an overhaul to New York’s bail laws.60 But the time was not politically ripe for the passage of such reforms into law: although a Democratic-majority Assembly was paired with a Democratic governor, a Republican-majority Senate forestalled any chance of substantive criminal justice reform. Bail reform became a much more plausible reality when the New York State Senate gained a Democratic majority in the November 2018 elections.61 With the Assembly maintaining a Democratic majority62 and Democratic Governor Cuomo winning reelection,63 the Democratic Party assembled its first “trifecta”64 since 2010.65 Finally, New York State seemed poised to make good on the Governor’s promise to Akeem Browder: to enact meaningful, progressive bail reform.66 For perhaps the first time in decades, the State seemed unified in pursuing and achieving this elusive goal.
Emboldened by a more progressive state government and by bail reforms in states including California and New Jersey,67 Democratic leadership in New York expressed an interest in ending the use of bail altogether.68 Although there seemed to be widespread support for this position, disagreement on other issues prevented serious movement in the effort to eliminate bail. Specifically, unlike federal law,69 New York law allowed judges to consider only the likelihood of an individual’s return to court when making bail decisions,70 long disallowing judges from considering the individual’s “dangerousness” or risk to public safety.71 Akin to the travails of decades earlier,72 views on whether public safety should be a valid concern of judges in making bail decisions presented a formidable obstacle73: although Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie agreed that “dangerousness” should not be introduced into the equation out of fear of its racist outcomes,74 Governor Cuomo had initially proposed to do just that.75 The solution was compromise. The 2019 bail reforms that Governor Cuomo would eventually sign into law neither entirely eliminated bail, nor did they introduce the concept of public safety into judges’ bail decisions.76
Instead, when the lawmakers struck a deal, the reforms explicitly introduced a presumption of release, providing a nondiscretionary baseline that the court shall release an individual on their own recognizance, unless that individual poses a flight risk,77 tilting the scale further toward release rather than confinement. When a court determined that an individual posed a risk of flight to avoid prosecution, it was now required to “select the least restrictive alternative and condition or conditions that will reasonably assure the principal’s return to court.”78 In the past, setting bail had functioned as the default for many offenses, but the reforms made nearly all misdemeanors and nonviolent felonies ineligible for bail.79 For some qualifying offenses—mainly violent felonies—a judge could still fix bail, but only if the judge deemed it the least restrictive method of assuring a defendant’s return to court.80
Beyond these fundamental alterations to New York’s pretrial detention system, the initial reforms put into place three other significant changes: (1) requiring judges to offer individuals three forms of bail for eligible offenses;81 (2) providing a variety of nonmonetary conditions that judges could impose to ensure an individual’s return to court;82 and (3) instructing judges to consider an individual’s “activities and history” when making decisions about pretrial conditions.83
2. Three Forms of Bail
In those circumstances where the charged offense qualified for bail and a court determined that fixing bail was the least restrictive condition to ensure the individual’s return to court, the reforms required judges to provide the individual with at least three methods of posting bail from an authorized list of options.84 Previously, judges were permitted, though not required, to offer individuals multiple methods of posting bail,85 although multiple forms were rarely offered. Not only did the reforms mandate that judges fix at least three forms of bail, but they also required that judges select at least one of a partially secured surety bond86 or an unsecured surety bond87 as an option.88 The reforms retained earlier language that, when fixing multiple forms of bail, judges “may designate different amounts varying with the forms.”89
Previously, judges could fix bail with total disregard for the individual’s financial circumstances, without considering whether there was even a remote possibility that the individual could post bail.90 With the introduction of the reforms, judges, if fixing bail, now had to consider the individual’s financial circumstances and whether fixing bail would impose undue hardship on the individual.91
3. Nonmonetary Conditions of Release
In conjunction with the institution of a presumption of release, the reforms introduced into law the concept of nonmonetary conditions as a method for securing the return to court of an individual deemed a risk of flight to avoid prosecution.92 Since the 2019 reforms made most misdemeanors ineligible for bail,93 when an individual was charged with a bail-ineligible misdemeanor, judges now possessed two options: (1) by default, release the individual on their own recognizance, or (2) if the individual is deemed a risk of flight to avoid prosecution, impose the least restrictive nonmonetary condition(s) that would reasonably assure the individual’s return to court.94 Excised from judges’ toolkits was the option to fix bail for this group of charged offenses.95
Even when an individual was charged with one of the dwindling number of qualifying offenses,96 judges retained the discretion to release the individual on their own recognizance.97 However, if a judge deemed an individual a risk of flight to avoid prosecution, that judge remained obligated to select the least restrictive condition that would reasonably assure that individual’s return to court.98 For those qualifying offenses, that least restrictive condition could be bail or it could be nonmonetary conditions if the judge thought them necessary to ensure the individual’s return to court.99 Only where the individual was charged with a qualifying felony could the judge consider remanding the individual to custody.100 Even in such cases, remand would only be appropriate if it were the least restrictive condition that would reasonably assure the individual’s return to court.101
The reforms provided judges with a non-exhaustive list102 of nonmonetary conditions from which they could choose to impose any one, or a combination of conditions, the least restrictive of which would reasonably ensure the individual’s return to court.103 The statute provided that the “principal shall not be required to pay for any part of the cost of release on non-monetary conditions.”104
4. “Activities and History”
Lawmakers maintained the State’s status quo by withholding from judges the explicit authority to consider “dangerousness” or threat to public safety when making bail decisions.105 In fact, the revised statute added language that judges consider “information about the principal that is relevant to the principal’s return to court,”106 which had been absent from the statute’s previous iteration.107 Once a judge decided that an individual posed a risk of flight to avoid prosecution, that judge was now left with the task of determining which condition(s) would be the least restrictive to secure the individual’s return to court.108 To guide judges in this determination, the reforms provided a revised list of factors for judges to consider and take into account.109 While many of the factors remained substantively similar to the statute’s prior version, the reforms removed from consideration “[t]he principal’s character, reputation, habits and mental condition,”110 among other considerations, replacing them with “[t]he principal’s activities and history.”111
C. New York’s 2020 Amendments to the Reforms
1. Backlash to the 2019 Reforms
New York’s bail reform saga did not end with the introduction of 2019’s reforms.112 Although the reforms quickly reduced prison populations,113 they were met with severe pushback from various media outlets,114 from the New York Police Department (NYPD),115 and even directly from the New York City police commissioner.116 Local media seized on the story of a mentally ill Black woman who was rearrested upon being released without bail to conclude that the bail reforms had failed.117 If this style of dog-whistle-laden attack evokes decades-old memories, it might not be a coincidence.118 Specifically, parallels abound with the 1988 United States presidential election, when a George H.W. Bush–backing political action committee ran the notorious “Willie Horton ad”119 as a way of attacking Democratic nominee Michael Dukakis and his views on criminal justice.120 In each instance, detractors of progressive criminal justice policy relentlessly parroted the case involving a single Black individual to demonstrate the policy’s shortcomings. Then, as now, the unfortunate exception to progress made in the criminal justice arena was leveraged as an attack on the movement as a whole.121
The vocal pushback to the new reforms precipitated amendments to those reforms. Detailed in the following Section, these amendments would be, in essence, rollbacks of the initial reforms, reining in New York’s criminal justice system closer to where it stood before the April 2019 reforms.122 The Legislature’s hedge of rolling back the reforms—but only partially so—pulled off the remarkable feat of dissatisfying advocates on both sides of the ever-polarized bail debate, alike.123
2. Rollbacks of the 2019 Reforms
Before detailing how the amendments altered the initial reforms, it is worth highlighting the key components of the reforms that remained intact.124 Fundamental to the reforms, the amendments retained the presumption of release.125 When determining the least restrictive conditions to secure an individual’s return to court, judges must still consider an individual’s “activities and history.”126 And before concluding that bail would indeed be the least restrictive condition, judges must still consider any undue hardship fixing bail would pose due to the individual’s financial circumstances.127 When fixing bail is the least restrictive condition for a qualifying offense, judges must still offer it in at least three forms.128 In an attempt to ensure that indigent people can afford bail, at least one of those forms must still be a partially secured surety bond or an unsecured surety bond.129 Spared from revision throughout both the 2019 reforms and the 2020 amendments was the language that judges “may designate different amounts varying with the forms” of bail they decide to fix.130
On April 3, 2020, the Legislature enacted various amendments to the bail reforms. Two amendments in particular hinder the progress made in reducing economic inequality in New York’s pretrial system.131 First, the amendments expanded the list of qualifying offenses, allowing judges to fix bail in a wider array of cases.132 Misdemeanors and nonviolent felonies, such as bail jumping or financial crimes, were relabeled qualifying offenses—a category that had previously included mainly violent felonies.133 In many instances, these were the very same misdemeanors and nonviolent offenses that were deemed non-qualifying offenses just months earlier.134
Additionally, the amendments altered the definition of nonmonetary conditions, expanding the enunciated list of nonmonetary conditions from which judges could select. Among the added nonmonetary conditions were restrictions on who the individual could associate with, various forms of mandatory programming, and orders of protection.135 While judges were already required to select the least restrictive conditions that would “reasonably assure the principal’s return to court,” the amendments added that those conditions must also “reasonably assure the principal’s compliance with court conditions.”136
II. Analysis
This Part will parse the goals of the New York State Legislature in enacting the various reforms to its Criminal Procedure Law137 and outline the ways in which these laws in their current state fail to achieve their intended purpose of reducing economic inequality in the State’s pretrial detention system.138 The reformed and amended bail laws fall short of their goals because they allow judges to retain discretion in two troublesome ways. First, judges’ discretion in setting the amounts of partially secured surety and appearance bonds inhibits the decrease in pretrial detention,139 and second, imprecise criteria allow judges to retain the discretion to weave public safety and “dangerousness” into bail decisions,140 each of which disparately impacts less-wealthy individuals.
“As a general rule, words used in Penal Law and Criminal Procedure Law are to be given their usual ordinary and commonly accepted meaning.”141 Legislative provisions governing bail must be related to proper purposes for detention of defendants prior to conviction and judicial applications of discretion authorized by the Legislature must be similarly related.142
A. The Legislature’s Intent
Since 1971, judges in New York have not been permitted to consider a criminal defendant’s threat to public safety or “dangerousness” when making decisions on bail or other pretrial conditions.143 Unlike most of the United States,144 and unlike the provisions set forth in the 1984 Federal Bail Reform Act,145 public safety and dangerousness have not been written into New York law as potential considerations for judges.146 Although the Eighth Amendment’s bail clause has never been construed to prohibit considerations of public safety and dangerousness,147 and although the United States Supreme Court has deemed constitutional the consideration of dangerousness in pretrial detention decisions,148 legislative and judicial history in New York show public safety and dangerousness have, in fact, been uniquely excluded from consideration by judges in New York.149
In New York, the sole purpose of pretrial conditions like bail has been to ensure that a criminal defendant returns to court at a future date.150 Even amid the turbulence surrounding New York’s bail laws in recent years—and around the consideration of public safety, in particular—this remains the case today.151 When Governor Cuomo embarked on revamping New York’s bail system, he opted not to propose introducing public safety into the equation of judges’ bail decision-making.152 Thus far, the Legislature has maintained the status quo on that front.153
In Governor Cuomo’s 2019 Justice Agenda, Cuomo expressly prioritized bail and pretrial detention reform, with the specific goal of removing a defendant’s wealth as a factor impacting their pretrial status.154 Democratic state leadership echoed Cuomo’s goals,155 as did Cuomo’s executive proposal submitted to the New York Senate and Assembly in January 2019.156 Although Cuomo’s initial vision of removing the use of bail altogether did not come to fruition, and although New York courts have acknowledged Cuomo’s intent,157 the bail reforms that Cuomo would later sign into law fail to achieve the semi-aspirational ends he preached from the onset of his efforts.
B. Prohibitively High Partially Secured or Unsecured Bonds
On first glance, the reformed provisions guiding how judges fix bail appear to reduce economic inequality in New York’s pretrial system. After all, judges now must offer individuals at least three options for posting bail, upped from two in the law’s previous iteration.158 And at least one of those three options must be a partially secured surety bond or unsecured surety bond,159 regarded as “two of the least onerous forms of bail.”160 Even further, judges now must consider whether fixing bail would impose an undue financial hardship on the individual.161 These are all positive, if not necessary, steps to reducing economic inequality in the pretrial criminal justice system.
However, one provision in the bail statutes—a provision that preceded these most recent reform efforts—has managed to survive iteration after iteration of the law. That is, that judges “may designate different amounts varying with the forms” of bail that judges choose to fix.162 That the Legislature retained this pesky language removes the decision whether to take the step of reducing pretrial inequality from the hands of the Legislature and drops it squarely on the shoulders of New York supreme court or criminal court judges.
Although judges are prohibited from setting “excessive” bail, they retain otherwise limitless leeway in designating the dollar amount of bail and the difference in amount between each option.163 For example, it is not uncommon for judges to set cash bail, secured or partially secured surety, and appearance bonds all at the same time, although judges rarely opt to set unsecured bonds.164 The statute provides no guidance on how the amount for each of these methods should compare to one another.165 Thus, judges set surety or appearance bonds that exceed the amount of cash bail.166 Some argue that one reason for this disparity is that unsecured bonds provide little incentive for the individual to return to court,167 even though an individual out on an unsecured bond who fails to return to court will be liable for the entirety of the often-exorbitant unsecured bond. A common result of prohibitively high partially secured or unsecured bonds, then, is that defendants are unable to meet any of the methods, resulting in their pretrial detention. This all-too-common result flies in the face of the very purpose of this newly added section of the bail laws.168
Although the purpose of requiring judges to fix partially secured bonds is to make it more likely that an individual can post bail, thereby decreasing the pretrial prison population and removing wealth from the equation, by setting prohibitively high partially secured bonds, judges can make it even less likely that a less-wealthy individual can post bail. Providing multiple methods of bail is intended to increase the likelihood that one such method will work for a defendant, meaning they can remain free during the pendency of their trial, all while the court can ensure that the individual will show up when needed because of what the defendant has placed at risk. Placing this burden on judges who are not necessarily committed to the same goals as the Legislature has proved ineffective.169 Three examples illustrate this failure of the revised bail law to make it more likely that an individual can avoid pretrial detention while ensuring that they return to court: (1) the case of J.S.,170 (2) the case of an unnamed defendant,171 and (3) People v. Chensky.172
1. The Case of J.S.
After J.S. was arrested in April 2020, a Bronx judge set cash bail at $30,000 and a partially secured bond at $50,000.173 J.S. and his family were unable to cobble together $30,000 to pay cash bail.174 That left just the partially secured bond, which meant J.S.’s family would have to provide the court with a ten percent refundable deposit—in this case, $5,000—to secure J.S.’s release. J.S.’s girlfriend managed to come up with the money, but J.S. remained in jail for a month as the judge required J.S.’s girlfriend to provide complicated paperwork to prove her income before the bond was approved.175 In all, J.S. remained in jail for six months following his arrest in the midst of the COVID-19 pandemic, even though he remained legally innocent.176
Even though J.S. and his family ultimately posted the partially secured bond, J.S. spent six months in jail during a deadly pandemic for no reason other than the fact that the court hesitated to approve the bond, given his family’s precarious financial position.177 Although a partially secured bond has the potential to make the lives of families like J.S.’s easier after a family member is arrested, that has not borne out in reality when the partially secured bonds are set so much higher than cash bail and when the individual and their family lack financial means. While judges are now somewhat restrained in how many and which types of bail they may fix, they retain complete discretion in the actual bail amounts.178 That discretion leads to cases like J.S.’s, in which less-wealthy individuals spend months on end in jail awaiting trial as a direct consequence of their lack of financial means, while wealthier individuals make bail and retain some semblance of freedom.179
2. The Case of an Unnamed Defendant
In January 2020, an unnamed man—let us refer to him as John—was arrested.180 In September 2020, a Queens Supreme Court judge fixed three forms of bail for John’s release as follows: (1) $75,000 cash bail; (2) $75,000 insurance company bond; and (3) $750,000 partially secured bond.181 John could not make cash bail.182 His family could not afford the nonrefundable ten percent fee—$7,500—that accompanied the insurance company bond.183 That left the partially secured bond, specifically enumerated in the statute as one of two required options for judges, since it is typically a less onerous form of bail. However, at that amount, it would require an up-front refundable deposit of $75,000—the same amount as cash bail, although riskier in comparison. John and his family could not post the partially secured bond.184 Thus, John remained in jail pending trial for nothing more than his lack of financial wealth.185
3. People v. Chensky
On January 15, 2020, Joseph Chensky was arrested and charged with two separate counts of Grand Larceny in the Fourth Degree.186 Neither of these felonies qualified for bail under the reformed bail law.187 The court released Chensky on his own recognizance.188 Twelve days later, Chensky failed to appear for his court date.189 Another week later, Chensky again failed to appear.190 As a result, the court issued a bench warrant for Chensky’s arrest, and Chensky was rearrested on February 7.191 Chensky’s “persistent” and “willful” failures to appear rendered his offense bail-eligible.192 Under the statute instructing judges on fixing bail, the court set cash bail at $10,000, bond at $30,000,193 and unsecured surety bond at an exorbitant $300,000.194 The court satisfied the requirements of the statute by fixing at least three forms of bail and by fixing either an unsecured surety bond or a partially secured surety bond.
It is unclear whether Chensky was able to post any of these three forms of bail. However, especially given the nature of the charged offenses, it would be no surprise to learn that Chensky did not have a spare $10,000 cash laying around or that he and his family lacked the nonrefundable $3,000 deposit due to a bail bond company. That left just the $300,000 unsecured bond, which would only become due upon Chensky’s failure to appear in court. Detractors of the unsecured bond would argue it provides no incentive to return to court, as it would be difficult to collect the amount from an individual who fails to appear and who may be judgment-proof, although wages can be garnished over time, for example, to satisfy an unsecured bond that has become due.195 Taking that as fact for the sake of argument, none of the three forms of bail fixed by the judge in Chensky would reasonably assure that he would return to court in the future, which is, after all, the sole reason that bail exists in New York.196
C. The Meaning of “Activities and History”
Although legislative history tells us that New York judges may not consider “dangerousness” or risk to public safety when making bail decisions,197 the actual language of New York’s reformed bail law fails to send the same message.198 Conspicuously absent from the bail law is any mention of public safety or dangerousness.199 In its stead is the phrase “activities and history,” as in, judges must take into account an individual’s “activities and history” when determining the least restrictive conditions necessary to secure the individual’s return to court.200 However, neither the phrase as a whole, nor the individual words “activities” or “history,” are defined by the statute.201 Notwithstanding the legislative history, these vague, amorphous words forming this vague, amorphous phrase give judges carte blanche to consider just about anything they can think up when determining the least restrictive conditions necessary to secure an individual’s return to court.
Further, this provision of the bail law appears to be non-exhaustive in nature. The statute provides that when determining the least restrictive conditions, judges must consider factors “including” those enumerated in the statute.202 The use of the term “including” indicates that judges may look outside the corners of the statute and consult other factors for further guidance on making these bail decisions.203 Without much guidance, then, on what judges may or may not consider beyond the statute’s list of factors, judges have yet another opportunity to read into the statute whether an individual is a risk to public safety.204
The Legislature attempted to clear these muddied waters by adding to the bail law that judges “shall explain [their] choice of release, release with conditions, bail or remand on the record or in writing.”205 In some cases, judges have provided thorough reasoning,206 while, in others, the explanation is sorely lacking.207 Ultimately, even with this requirement, it can be difficult to parse a judge’s reasoning behind bail decisions, and it can be even more difficult to discern whether those decisions accounted for “dangerousness” or public safety, whether intentionally or implicitly. With that in mind, recent examples help to highlight this ambiguity.
1. People v. Connon
In People v. Connon, Connon had been charged with Criminal Obstruction of Breathing and Endangering the Welfare of a Child, neither of which is a qualifying offense per se under the reformed bail law.208 However, since this particular incident was allegedly directed against a member of Connon’s family or household, it became bail-eligible.209 Thus, the judge was tasked with determining the least restrictive conditions that would ensure Connon’s return to court.210 After considering the statutory factors, including, of course, Connon’s “activities and history,” the judge decided to fix monetary bail.211
In explaining his reasoning behind the decision, the judge appeared to rely heavily on Connon’s three prior felony convictions, although it was not explained how that sample of Connon’s activities and history weighed in the judge’s decision-making.212 It is possible that, as a result of those three prior felony convictions, the judge viewed Connon as a threat to public safety, leading the judge to fix monetary bail. Without the benefit of sufficiently detailed reasoning on the record, it is hard to imagine that Connon’s “dangerousness” did not factor into the judge’s decision-making.
2. People v. Lang
In People v. Lang, the seventy-eight-year-old Lang was awaiting a new trial and sought to be released on his own recognizance or on nonmonetary conditions in the lead up to the new trial.213 Lang had been convicted of second-degree murder after he shot and killed his brother in 2012.214 After an issue with an alternate juror, the New York Court of Appeals reversed an order by the Appellate Division affirming the conviction.215 Second-degree murder remains a qualifying offense, and the judge was tasked with determining the least restrictive conditions to secure Lang’s return to court.216
In accounting for Lang’s “activities and history,” the judge noted Lang’s lack of prior criminal convictions, that there was no evidence he was anything other than a model prisoner, that Lang had no record of flight to avoid criminal prosecution, and, specifically, that Lang did not attempt to flee to avoid prosecution in the eleven days he remained free after his arrest.217 Yet, the judge emphasized the nature of Lang’s particular offense and specifically the nature of his actions giving rise to this case.218 The judge refrained from explicitly calling Lang dangerous or a risk to public safety. However, the judge’s bail decision, combined with the judge’s reasoning, reflects such a conclusion. The judge opted to fix three forms of bail in the following inflated amounts: (1) $500,000 cash bail; (2) $2,000,000 insurance company bail bond; or (3) $2,000,000 partially secured surety bond with a ten percent deposit.219
III. Proposal
A. Regulating Dollar Amounts of Monetary Bail
The current state of New York’s bail law affords judges nearly unrestricted discretion to set bail at amounts so high that the intention of the reforms to reduce economic inequality in the criminal justice system is easily sidestepped. Although the new requirement that judges must fix at least one of a partially secured surety bond or unsecured surety bond is a step in the right direction, judges’ unfettered discretion renders the requirement nearly toothless. Assuming that eliminating monetary bail outright is not a politically likely outcome for the time being, and assuming that the Legislature would be unwilling to eliminate the decades-old language in the statute allowing judges to fix bail in differing dollar amounts, we must look elsewhere for possible solutions.
A Bronx County Supreme Court judge authored a possible resolution to this dilemma in his decision in People v. Portoreal.220 After thoroughly laying out the machinations of New York’s bail law following the 2019 reforms,221 the judge reiterated that the Legislature intended to make it more likely that a given individual could post bail through the reforms.222 The judge also maintained that the lack of an up-front deposit accompanying unsecured bonds means that they provide little incentive for an individual to return to court.223
Having decided, in this particular case, that monetary bail was the least restrictive condition that would reasonably assure the defendant’s return to court, and having decided that an unsecured bond in any dollar amount would do little to achieve that end, the judge then set out on fixing the appropriate partially secured bond.224 He haphazardly reasoned that a partially secured bond amount should exceed an insurance company bail bond, since, dollar amounts being equal, the partially secured bond provides less of a financial incentive for a defendant to return to court.225 Meanwhile, the judge noted that setting the partially secured bond significantly higher than the insurance company bail bond would circumvent the Legislature’s goals.226 The judge’s solution was simple, yet arbitrary and seemingly pulled out of thin air: a partially secured bond should not be set more than three times higher than an insurance company bail bond.227 Thus, in Portoreal, the judge fixed bail in the following amounts: (1) $50,000 cash bail; (2) $200,000 insurance company bail bond; or (3) $250,000 partially secured bond.228 The outcome of Portoreal—setting three unaffordable forms of bail—underscores the flaw in this judge’s conception—a flaw that might yet be remedied with further tweaking.
As exemplified by Portoreal, the widespread consequence of the judge’s idea would likely be higher bail amounts across the board. Without capping cash bail or insurance company bail bond amounts, judges would be tempted to raise those amounts to meet the “three times” requirement proposed by this judge, instead of lowering the partially secured bond amount to meet that same requirement. But codifying the judge’s idea into the bail law and building upon it might yet prove helpful to achieve the Legislature’s goals. The Legislature could build upon the Portoreal judge’s idea in three ways: (1) by capping cash bail and insurance company bail bonds at certain amounts, (2) by creating a presumption that judges set unsecured bonds rather than partially secured bonds, and (3) by reducing the maximum percentage of the undertaking that judges may require as an up-front deposit for partially secured bonds.
In all, the revised bail law would look something like this: When judges determine that fixing monetary bail is the least restrictive condition that would reasonably ensure an individual’s return to court,229 judges would still be required to set three forms of bail, at least one of which would have to be a partially secured bond or unsecured bond.230 The revised statute would devise a cap on cash bail and on insurance company bail bonds. When deciding between setting either a partially secured bond or unsecured bond—assuming judges are unlikely to set both—there would be a presumption that judges shall opt for the unsecured bond unless the individual presents an acutely high risk of flight to avoid prosecution or has a history of failing to return to court. When judges select partially secured bonds, judges would be limited to setting them only so much higher than the amount of cash bail or insurance company bond—for the sake of clarity, let us say judges may only set partially secured bonds up to 120 percent of cash bail or an insurance company bail bond. Lastly, if a judge opts for a partially secured bond, the maximum that judges could require as an up-front deposit would be reduced from ten percent of the bond to, perhaps, one percent.
Having built on the judge’s approach in this fashion, the dollar amount of each of the three forms of bail that judges must set will be both lower and closer in value. With a cap in place on cash bail and insurance company bail bonds, the previously untethered partially secured bond will now be anchored and more manageable for individuals to post. But in all such cases, the presumption in favor of the unsecured bond will often not require an individual to make any sort of up-front deposit. In all, this revision to New York’s bail law would meet the Legislature’s goal of reducing how one’s wealth impacts their freedom pending trial, while continuing to ensure that individuals return to court.
B. Revamping “Activities and History”
The simplest path to excising, once and for all, public safety and “dangerousness” from judges’ considerations when determining the least restrictive conditions to ensure an individual returns to court would be to insert language to that effect directly into the statute. However, given the heated and polarized debate that has ensued each time the issue of public safety arises in the context of bail reform,231 that might be the path of most resistance, the path least likely to succeed, and maybe even the path most likely to backfire. Alternatively, the phrase “activities and history” could be removed from the statute altogether, though this is also unlikely to provide the sought-after clarity. Since the list of factors for judges to consider is non-exhaustive,232 judges would remain free to consider “activities and history,” and countless other factors, even if the phrase were no longer to appear explicitly in the statute.
Therein lies the first affirmative step towards eliminating public safety and “dangerousness” from factoring into bail outcomes. The Legislature should consider simply replacing the word “including” with the phrase “limited to.” In doing so, the Legislature would explicitly confine judges to the enumerated list of factors within the statute. The Legislature might then consider revising the list of factors, but, in any case, this revision would give judges a finite number of considerations, none of which involve public safety or “dangerousness.”
This change, though, does not cure the ambiguity of the phrase “activities and history.” Defining the phrase as excluding public safety and “dangerousness” is unlikely to come to fruition, again due to the contentious nature of similar debates in years past. Beyond this option, the Legislature could consider refining the statutory language involving how judges explain their decisions. Currently, the bail law provides that judges “shall explain [their] choice of release, release with conditions, bail or remand on the record or in writing.”233 Requiring judges to explain their reasoning has the potential to be an effective way of holding judges to account and ensuring they only contemplate the appropriate considerations. But the statute as written allows judges to skate by with the most bare-bones of explanations of their reasoning. While it might be outside the scope of the Legislature to tell judges how to write their decisions, the Legislature should consider requiring judges to reaffirm on the record or in writing that they have not considered public safety or “dangerousness” when determining the least restrictive conditions to ensure an individual’s return to court.
It is not possible to get inside of a judge’s head to truly understand their reasoning, beyond what they put on the record or in writing. No matter what the text of the statute says, there must always be a leap of faith that judges stay true to the considerations the Legislature affords them in making decisions involving pretrial conditions. While no revision to the statute can absolutely ensure that judges will not factor public safety and “dangerousness” into these decisions, this requirement can, at the very least, serve as a frequent reminder to judges of what remains in-bounds and what lies out-of-bounds when judges make these critical pretrial decisions.
Conclusion
As demonstrated, New York’s bail reform travails of the past few years have fallen flat in reducing the impact of economic inequality in pretrial detention outcomes. Although the revised bail law has already decreased jail and prison populations considerably,234 a goal of the reforms from the outset,235 New York’s criminal justice system and its pretrial detention system, in particular, continue to treat most harshly those with the least financial means. More important than failing to live up to the Governor’s and Legislature’s promises, the previous sentence describes an inherently unjust justice system: a system deploying something closer to a presumption of guilt—a presumption of guilt only for those of lesser financial means, that is—than we often profess. As Bryan Stevenson has presented, we operate “a system of criminal justice that continues to treat people better if they are rich and guilty than if they are poor and innocent.”236 Hope endures though, as bail reform efforts spearheaded by dedicated activists and reformers make inroads nationwide, and as the injustice of bail laws around the country begin to enter into the nation’s collective conscience.237
The United States claims to regard as sacrosanct its presumption of innocence. In 1987 Chief Justice Rehnquist told us that “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”238 But then, as now, that is not reality.239 That is not reality for the thousands upon thousands of people confined to jails, yet presumed innocent, for no reason other than the fact that they lack the financial means to get out.
That was not reality for Brandon Rodriguez, a twenty-five-year-old Staten Island man, who took his own life on August 10, 2021, while incarcerated pretrial at Rikers Island.240 Mr. Rodriguez was arrested on August 4, 2020, and he lacked the financial means to post cash bail of $5,000 or a bond set at $15,000, causing his incarceration pending trial.241 The State of New York may have reformed its pretrial detention system since Kalief Browder’s passing in 2015, but the reforms have not stamped out the injustices wrought by excessive bail and economic inequality. Mr. Rodriguez—a legally innocent man—was punished with a death penalty of sorts not for the commission of any crime, but rather for his lack of monetary wealth.242
Writing this Note in the midst of the COVID-19 pandemic,243 with social justice movements reinvigorated following continued police killings of Black Americans including George Floyd and Breonna Taylor,244 and following the January 6, 2021, attack on the United States Capitol, a reframing of the debate around bail is in order. Instead of expressing outrage at the few individuals who are able to remain free pending trial—even those accused of committing heinous acts245—perhaps we should channel this frustration into remedying the havoc wreaked upon the lives of thousands upon thousands of people by an unjust system of pretrial detention.