Revises the procedures regulating the release of persons charged with criminal offenses pending trial.
TITLE OF BILL: An act to amend the criminal procedure law, in relation to the issuance of securing orders
This measure is being introduced at the request of the Chief Judge of the State.
This measure would amend the Criminal Procedure Law to reform the State's bail statutes to: (1) require judges, when making bail decisions, to consider public safety as well as the risk of flight; and (2) establish a statutory presumption of release where defendants are charged with non-violent offenses and they present no threat to the community or risk of flight.
New York offers special challenges in achieving bail reform. In almost every other state, judges are required by statute to consider public safety when making a bail determination. In New York, they are not required, or even permitted, to do so. Because of this, defendants in New York are screened for their risk of failure to appear in court using a range of factors such as ties to the community, criminal record, and past failure to appear - but not for the broader risk that the defendant will continue to engage in criminal activity. As a result, defendants may be put back on the street with insufficient regard for public safety. Few, if any, would seriously argue that judges should not consider the safety and well-being of people on our streets or in our homes when making release decisions. This makes no sense and certainly does not serve the best interests of our communities and our citizens.
The time has come to join 46 other states, the District of Columbia and the Federal government by changing New York's bail laws to require judges to take into account public safety considerations. Fixing this deficiency must be a top priority of any revision to our bail statutes. Judges must be authorized to consider public safety as well as the risk of failure to appear for court when making bail decisions. To allow the present situation to continue is bad public policy at a time when we need to do everything we can to be smart, effective and principled, in combating crime and violence in our society.
But this should be just the start of a top-to-bottom revamping of the rules governing bail in our state - a new vision of pretrial justice in New York. Back in 1964, Robert F. Kennedy made a powerful case for bail reform, saying: "Usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money." While, thanks to the efforts of reformers like Herb Sturz and others, much has improved in our criminal justice system in New York since Kennedy spoke these words, the reality is that we still have a long way to go before we can claim that we have established a coherent, rational approach to pre-trial justice. Our overriding goal must be to ensure that pre-trial detention is reserved only for those defendants who cannot safely be released or who cannot be relied upon to return to court - and to do all we can to eliminate the risk that New Yorkers are incarcerated simply because they lack the financial means to make
bail. More than simply being unfair, incarcerating indigent defendants for no other reason than that they cannot meet even a minimum bail amount strips our justice system of its credibility and distorts its operation. Jailing defendants before trial can subject them to economic and psychological hardship, limit their ability to assist in their defense and place them at a serious disadvantage in the plea bargaining process. It also places needless costs on our localities at a time when we can ill afford to waste valuable public resources.
To avoid these results, our bail statutes must be reformed to make clear that, where defendants are charged with non-violent offenses, there are statutory presumptions that defendants who represent no threat to public safety and no risk of flight shall be released pending trial; and that, whenever defendants are released - whether on bail or not, they will be released with the least restrictive conditions possible unless prosecutors demonstrate that the defendant poses a threat to public safety or a legitimate risk of failure to appear in court. At the same time, to support judges when they make determinations to release defendants pre-trial, we need to ensure that they have authority to impose a range of release conditions when necessary, such as curfews, drug testing, and substance abuse treatment.
This measure would take effect on November first after it becomes law.
Legislative History: None. New proposal.
STATE OF NEW YORK ________________________________________________________________________ 4483 2013-2014 Regular Sessions IN SENATE April 3, 2013 ___________Introduced by Sen. NOZZOLIO -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to the issuance of securing orders THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Legislative findings. The legislature finds and declares that there is a present need to revise New York's procedures regulating release of persons charged with criminal offenses pending trial. These procedures, which are set forth in title P of the criminal procedure law, require criminal courts to issue securing orders releasing such persons on their own recognizance, fixing bail upon the payment of which they must be released from custody, or remanding them to the custody of corrections officials. Experience has shown that these procedures are ill-designed to meet today's community needs. First, New York remains one of very few states nationally that fails to require judges, in making bail decisions, to weigh defendant's threat to public safety. This makes little sense in modern American life where we as a state need to do all we can to be effective and principled in protecting communities from dangerous persons charged with crime who may otherwise be eligible for release pending trial. Second, as many have recognized, New York's bail rules, as applied, can be particularly unfair to poor persons and their fami- lies as bail beyond the financial wherewithal of a criminal defendant is frequently ordered in low-level offenses even where such defendant may pose little risk of flight. Accordingly, this act has two purposes. First, it seeks to recognize what most other state jurisdictions and the federal government have long accepted - that a defendant's danger to the community is a factor that must be considered by a court charged with determining whether thatEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08986-01-3 S. 4483 2
defendant should be released pending trial. Second, this act aims to ensure that the state's bail statutes are implemented fairly and that poor persons charged with crime should not be at any special disadvan- tage when it comes to decisions regarding release pending trial. S 2. The opening paragraph of paragraph (a) of subdivision 2 of section 510.30 of the criminal procedure law is amended to read as follows: With respect to any principal, the court must consider the kind and degree of control or restriction that is necessary to secure his OR HER court attendance when required AND TO ASSURE THE SAFETY OF ANY OTHER PERSON OR THE COMMUNITY. In determining
[that matter]THESE MATTERS, the court must, on the basis of available information, consider and take into account: S 3. The section heading of section 510.40 of the criminal procedure law is amended and a new subdivision 1-a is added to read as follows: Application for recognizance or bail; determination thereof, FIXING CONDITIONS THEREFOR, form of securing order and execution thereof. 1-A. THE COURT MAY MAKE ANY SECURING ORDER SPECIFIED IN PARAGRAPH (A) OR (B) OF SUBDIVISION ONE OF THIS SECTION SUBJECT TO ANY CONDITION OR CONDITIONS THAT, IN ITS DETERMINATION, WILL REASONABLY ASSURE THE APPEARANCE OF THE PRINCIPAL IN COURT WHEN REQUIRED OR THAT WILL REASON- ABLY ASSURE THE SAFETY OF ANY OTHER PERSON OR THE COMMUNITY. SUCH CONDI- TION OR CONDITIONS MAY INCLUDE ANY THAT TO THE COURT SEEM APPROPRIATE PROVIDED THAT THEY REPRESENT THE LEAST RESTRICTIVE CONDITION OR CONDI- TIONS NECESSARY. NOTWITHSTANDING THE FOREGOING, THIS SUBDIVISION SHALL NOT AFFECT A COURT'S AUTHORITY PURSUANT TO SECTIONS 530.12 AND 530.13 OF THIS TITLE. S 4. Subdivision 1 and the opening paragraph of subdivision 2 of section 530.20 of the criminal procedure law, as amended by chapter 531 of the laws of 1975, are amended to read as follows: 1. When the defendant is charged [, by information, simplified informa- tion, prosecutor's information or misdemeanor complaint,]with an offense or offenses [of less than felony grade only]OTHER THAN A VIOLENT FELONY OFFENSE AS DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THE PENAL LAW OR THE COMMISSION OR ATTEMPTED COMMISSION OF A CLASS A FELONY OR MANSLAUGHTER IN THE SECOND DEGREE AS PROVIDED IN SECTION 125.15 OF THE PENAL LAW, the court must order recognizance [or bail]UNLESS THE COURT DETERMINES THAT SUCH A SECURING ORDER WILL NOT REASON- ABLY SECURE THE DEFENDANT'S COURT ATTENDANCE WHEN REQUIRED OR WILL ENDANGER THE SAFETY OF ANY OTHER PERSON OR THE COMMUNITY IN WHICH EVENT THE COURT MUST ORDER BAIL. When the defendant is charged, by felony complaint, with a VIOLENT felony OFFENSE AS DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THE PENAL LAW OR THE COMMISSION OR ATTEMPTED COMMISSION OF A CLASS A FELONY OR MANSLAUGHTER IN THE SECOND DEGREE AS PROVIDED IN SECTION 125.15 OF THE PENAL LAW, the court may, in its discretion, order recognizance or bail except as otherwise provided in this subdivision: S 5. Subdivisions 1, 2 and 3 of section 530.40 of the criminal proce- dure law, subdivision 3 as amended by chapter 264 of the laws of 2003, are amended to read as follows: 1. When the defendant is charged with an offense or offenses [of less than felony grade only]OTHER THAN A VIOLENT FELONY OFFENSE AS DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THE PENAL LAW OR THE COMMISSION OR ATTEMPTED COMMISSION OF A CLASS A FELONY OR MANSLAUGHTER IN THE SECOND DEGREE AS PROVIDED IN SECTION 125.15 OF THE PENAL LAW, the courtS. 4483 3
must order recognizance
[or bail]UNLESS THE COURT DETERMINES THAT SUCH A SECURING ORDER WILL NOT REASONABLY SECURE THE DEFENDANT'S COURT ATTENDANCE WHEN REQUIRED OR WILL ENDANGER THE SAFETY OF ANY OTHER PERSON OR THE COMMUNITY IN WHICH EVENT THE COURT MUST ORDER RECOGNIZANCE OR BAIL. 2. When the defendant is charged with a VIOLENT felony OFFENSE AS DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THE PENAL LAW OR THE COMMISSION OR ATTEMPTED COMMISSION OF A CLASS A FELONY OR MANSLAUGHTER IN THE SECOND DEGREE AS PROVIDED IN SECTION 125.15 OF THE PENAL LAW, the court may, in its discretion, order recognizance or bail. In any such case in which an indictment (a) has resulted from an order of a local criminal court holding the defendant for the action of the grand jury, or (b) was filed at a time when a felony complaint charging the same conduct was pending in a local criminal court, and in which such local criminal court or a superior court judge has issued an order of recogni- zance or bail which is still effective, the superior court's order may be in the form of a direction continuing the effectiveness of the previ- ous order. 3. Notwithstanding the provisions of [subdivision]SUBDIVISIONS ONE AND two OF THIS SECTION, a superior court may not order recognizance or bail, or permit a defendant to remain at liberty pursuant to an existing order, after he OR SHE has been convicted of either: (a) a class A felo- ny or (b) any class B or class C felony defined in article one hundred thirty of the penal law committed or attempted to be committed by a person eighteen years of age or older against a person less than eigh- teen years of age. In either case the court must commit or remand the defendant to the custody of the sheriff. S 6. The criminal procedure law is amended by adding a new section 530.42 to read as follows: S 530.42 ORDER OF RECOGNIZANCE OR BAIL: REVIEW OF SECURING ORDER. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF SECTION 510.20 OF THIS TITLE, UPON A DEFENDANT'S FIRST APPEARANCE BEFORE THE COURT IN A CRIMINAL ACTION OR PROCEEDING IN WHICH HE OR SHE IS CHARGED WITH ONE OR MORE OFFENSES, OCCURRING NOT LESS THAN THIRTY DAYS AFTER HE OR SHE WAS ARRAIGNED THEREON, THE COURT MUST ENTERTAIN AN APPLICATION BY THE DEFENDANT FOR A CHANGE IN ANY SECURING ORDER THEN APPLICABLE TO SUCH DEFENDANT IN SUCH ACTION OR PROCEEDING. UPON SUCH APPLICATION, THE DEFENDANT MUST BE ACCORDED AN OPPORTUNITY TO BE HEARD, AND THE COURT MUST DETERMINE THE APPLICATION DE NOVO, WITHOUT REGARD TO THE EXISTING SECURING ORDER AND IN THE SAME MANNER AS IT WOULD DETERMINE AN APPLICA- TION FOR RECOGNIZANCE OR BAIL MADE BY A DEFENDANT WHEN HE OR SHE FIRST COMES UNDER THE CONTROL OF THE COURT. NOTWITHSTANDING THE FOREGOING, THIS SECTION SHALL NOT APPLY WHERE (I) A DEFENDANT IS CHARGED WITH ONE OR MORE OFFENSES IN A SUPERIOR COURT BY INDICTMENT OR SUPERIOR COURT INFORMATION FILED AFTER THE DEFENDANT HAS BEEN HELD FOR ACTION OF THE GRAND JURY BY A LOCAL CRIMINAL COURT BEFORE WHICH A FELONY COMPLAINT CHARGING DEFENDANT WITH COMMISSION OF ONE OR MORE OFFENSES WAS PENDING, AND (II) WHILE SUCH FELONY COMPLAINT WAS PENDING, SUCH LOCAL CRIMINAL COURT RECEIVED AND DETERMINED AN APPLICATION BY DEFENDANT PURSUANT TO THIS SECTION IN RELATION TO A SECURING ORDER ISSUED BY SUCH COURT UPON DEFENDANT'S ARRAIGNMENT ON SUCH FELONY COMPLAINT. S 7. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.