In recent weeks, criminal justice reform has been on the minds of many New Yorkers. This past January, Governor Andrew Cuomo released his latest bail reform proposal, which would effectively eliminate all current forms of money bail in New York. More recently, the New York Assembly and Senate have put forward bail proposals of their own, and Chief Judge Janet DiFiore has highlighted the “urgent need” for criminal justice reform in our state, especially when it comes to bail.
“Far too many defendants, presumed innocent under the law, are being detained prior to trial, not because of the risks they pose, but due to their inability to pay the amount of bail set in their cases,” the chief judge said in her State of the Judiciary on Feb, 26. “This is inequitable and contrary to our long-held belief that pretrial detention should be a carefully limited exception to the norm of liberty.”
The discussion about bail reform has reached near-fevered pitch. The District Attorneys Association of New York has said that although the time is ripe for bail reform, we should take this moment to make sure it is done in a meaningful and successful way. A coalition representing defense attorneys and advocates, meanwhile, has responded that prosecutors evoke the boogeyman of public safety to hinder more progressive reform that would protect the presumption of innocence and maximize pretrial liberty without discrimination, particularly for indigent defendants. Everyone agrees that bail reform is needed, and now. The details are what divide us.
The New York State Justice Task Force, which we co-chair, recently spent 21 months studying bail reform in New York and across the country, including in neighboring New Jersey. Started nearly 10 years ago, the task force brings together the main stakeholders in New York’s criminal justice system—judges, prosecutors, legislators, defense attorneys and victim advocates—to delve into some of the headiest criminal justice issues we face. It is an important forum where practitioners, wise from their respective experiences on the front lines, come together to build consensus on fair and practical solutions. In the past, our recommendations have led to statutory reform for electronic recording of custodial interrogations and eyewitness identification procedures. And our recommendations regarding expanded and expeditious discovery reform, which came out several years ago, are still very much in play: www.nyjusticetaskforce.com/pdfs/Criminal-Discovery.pdf
This past February, the Task Force published its report on bail reform: http://www.nyjusticetaskforce.com/pdfs/ReportBailReform2019.pdf
In it, the task force recommended that courts presume that defendants charged with a misdemeanor and most non-violent felonies—constituting the vast majority of cases that go through our system every year—be released on their own recognizance or with the least restrictive non-monetary conditions needed to ensure they return to court.
The presumption of release could be rebutted, however, where there is an unusual risk that the defendant will not return to court, or where the court determines that the defendant poses a credible threat to the safety of an identifiable person or group of persons (such as in domestic violence cases). If the presumption is overcome for either of these reasons, the court would have to explain its reasoning on the record, so it can be reviewed down the road.
In those cases where the presumption is rebutted, and any others where the presumption simply does not apply, the court would have to conduct a traditional bail determination, considering the same enumerated statutory factors it is already required to consider. And in the extraordinary cases where a court determines that a defendant poses a credible threat to the safety of an identifiable person or group of persons, due process would require that there be a fact-finding hearing.
It is time for criminal justice reform, and we applaud those in Albany and across our state who are now wrestling with how to best implement that reform. We hope that the task force’s recommendations continue to be a part of those discussions. But more importantly, we hope that politicians and members of the criminal justice system—of which we are a part—continue to work together to protect the liberty of our citizens, staying true to the bedrock principle that all are innocent until proven guilty.
Carmen Beauchamp Ciparick, a retired Court of Appeals judge, is of counsel to Greenberg Traurig. Mark Dwyer is a judge of the New York State Court of Claims. They are co-chairs of the New York State Justice Task Force.