Bail Reform Law of 2020

Effective January 1, 2020, a new bail law went into effect in New York drastically reducing the number of criminal charges for which pre-trial bail is an option. This means that if you are arrested, the likelihood of you having to spend even one night in jail dramatically decreased. Bail is a method that judges use to ensure that criminal defendants return to court. In exchange for being released from jail during the pendency of the criminal proceedings, the defendant is required to pledge collateral. There are 9 different types of bail, including cash, credit card, and various types of bond. Typically, the judge will make a decision about bail during arraignment. Depending on the charge and other factors, the prosecutor may urge the judge to require bail, deny bail, or allow the defendant to be released without posting bail. Under the prior law which had been in place since 1971, for practically any criminal charge, the judge had the discretion to require bail if he (or she) determined that there was a likelihood that the defendant would not show up to court. In addition, if bail was ordered, the judge had the discretion as to which forms of bail the defendant was required to use. More often than not, judges ordered cash bail or insurance company bail bond—the two most financially oppressive forms. If you or a loved one is facing criminal charges and are concerned about bail, contact an experienced New York bail reform lawyer at the Law Offices of Stephen Bilkis & Associates. Under the Bail Reform Law of 2020, you may not have to post bail.

With the new system, the type of charge—misdemeanor, nonviolent felony, or violent felony—has taken centerstage in determining whether a defendant is released on his own recognizance, released with nonmonetary conditions, or must post bail. For those charged with most misdemeanors and nonviolent felonies bail is no longer an option. The rationale behind the new law is that in the past far too many defendants remained in jail awaiting trial, not because of the severity of the charges or because there was a significant risk of flight, but because they simply did not have the money to pay even a relatively low amount of cash bail.

Under the prior law, regardless of whether the charge was a misdemeanor or a felony, the judge had the discretion to release the defendant on his own recognizance, release with conditions, set bail, or require the defendant to be held without bail. Under the Bail Reform Law, where the defendant is charged with a misdemeanor or a nonviolent felony (with some exceptions), the judge’s only options are to release the defendant on his (or her) own recognizance or to release the defendant under the “least restrictive” nonmonetary conditions. An example of a nonmonetary condition is court ordered pre-trial supervision. A New York bail reform lawyer will be able to recommend other options for release conditions. If the judge opts to release the defendant with pre-trial supervision or any other condition, he must memorialize his rationale for the conditions on the record or in writing.

In determining whether it is appropriate to release a defendant on his own recognizance or to release him with conditions, the Bail Reform Law provides a list of factors that a judge is permitted to consider, including the defendant’s activities and history, the charges he is facing, his criminal record, his juvenile record, record of flight to avoid criminal prosecution, and his financial resources. CPL § 510.30. If the defendant’s case is on appeal, the court is also permitted to consider the likelihood of the appeal’s success.

The major changes to the bail law do not apply to defendants charged with offenses that are classified as “qualifying offenses.” This includes violent felonies. It also applies to some nonviolent felonies such as sex crimes, incest, witness tampering and other crimes impacting judicial proceedings, money laundering, and certain conspiracy crimes. CPL § 510(4).

If the charge is a qualifying offense, the judge has discretion to release the defendant on his own recognizance, release him with conditions, or set bail. If the qualifying offense is a felony, the judge also has the option of remanding the defendant to custody to be held without bail.

The new law retains the provisions of the prior law related to the forms of bail that are authorized. There are 9 options: cash, insurance company bail bond, secured surety bond, secured appearance bond, partially secured surety bond, partially secured appearance bond, unsecured surety bond, unsecured appearance bond, and credit card. CPL § 520.10. The Bail Reform Law does have a new requirement related to the type of bail options that the judge must offer defendants. Instead of requiring the court to offer only two options, the court must now offer 3 options, one of which must be an unsecured or partially secured surety bond. This change is consistent with the new law’s goal of minimizing the impact of poverty on whether a defendant must remain in custody pending trial.

The offenses that are bail eligible because they are “qualifying offenses” include class A felonies, violent felonies, sex crimes (felonies and misdemeanors), and select other nonviolent felonies.

Conspiracy: Conspiracy in the first degree- 105.17

Homicide: Murder in the second degree- 125.25; Aggravated murder- 125.26; Murder in the first degree- 125.27

Sex crimes: Predatory sexual assault- 130.95; Predatory sexual assault against a child- 130.96

Kidnapping: Kidnapping in the first degree- 135.25

Arson: Arson in the first degree- 150.20

Controlled substances: Criminal possession of a controlled substance in the second degree- 220.18; Criminal sale of a controlled substance in the second degree- 220.41; Operating as a major trafficker- 220.77

Enterprise corruption: Aggravated enterprise corruption- 460.22

Terrorism: Crime of terrorism- 490.25; Criminal possession of a chemical weapon or biological weapon in the first degree- 490.45; Criminal use of a chemical weapon or biological weapon in the second degree- 490.50; Criminal use of a chemical weapon or biological weapon in the first degree- 490.55

Assault: Gang assault in the first degree- 120.07; Assault in the first degree- 120.10; Aggravated assault upon a police officer or a peace officer- 120.11

Homicide. Manslaughter in the first degree- 125.20; Aggravated manslaughter in the first degree- 125.22; Attempted murder in the second degree- 125.25;

Sex crimes: Rape in the first degree- 130.35; Criminal sexual act in the first degree- 130.50; Aggravated sexual abuse in the first degree- 130.70 Course of sexual conduct against a child in the first degree- 130.75

Kidnapping: Kidnapping in the second degree- 135.20; Attempted kidnapping in the first degree- 135.25

Burglary: Burglary in the first degree- 140.30; Burglary in the first degree-140.25(1) only where a weapon is involved or a nonparticipant is injured.

Arson: Arson in the second degree- 150.15; Attempted Arson in the first degree- 150.20

Robbery: Robbery in the first degree- 160.10(2) and (3) only: Robbery in the first degree- 160.15

Gun crimes: Criminal possession of a weapon in the first degree- 265.04; Criminal use of a firearm in the first degree- 265.09; Criminal sale of a firearm in the first degree- 265.13

Witness tampering: Intimidating a victim or witness in the first degree- 215.17

Incest: Incest in the first degree- 255.27

Terrorism: Hindering prosecution of terrorism in the first degree- 490.35: Criminal possession of a chemical weapon or biological weapon in the second degree- 490.40; Criminal use of a chemical weapon or biological weapon in the third degree- 490.47

Assault: Gang assault in the second degree- 120.06; Assault on a peace officer, police officer, fireman or emergency medical services professional- 120.08; Assault on a judge- 120.09

Strangulation: Strangulation in the first degree- 121.13

Homicide: Aggravated criminally negligent homicide- 125.11: Aggravated manslaughter in the second degree- 125.21

Sex crimes: Aggravated sexual abuse in the second degree- 130.67

Burglary: Burglary in the second degree- 140.25

Robbery: Robbery in the second degree- 160.10

Gun crimes: Criminal possession of a weapon in the second degree- 265.03; Criminal use of a firearm in the second degree- 265.08; Criminal sale of a firearm in the second degree- 265.12; Criminal sale of a firearm with the aid of a minor- 265.14; Aggravated criminal possession of a weapon- 265.19

Terrorism: Soliciting or providing support for an act of terrorism in the first degree- 490.15; Hindering prosecution of terrorism in the second degree- 490.30; Criminal possession of a chemical weapon or biological weapon in the third degree- 490.37

Conspiracy: Conspiracy in the second degree- 105.15- if related to conspiring to commit an aggravated murder, murder in the first degree, or murder in the second degree

Offenses related to judicial proceedings: Tampering with a witness in the third degree- 215.11; Tampering with a witness in the second degree- 215.12; Tampering with a witness in the first degree- 215.13; Intimidating a victim or witness in the third degree- 215.15

Incest. Incest in the third degree- 255.25; Incest in the second degree- 255.26; Incest in the first degree- 255.27

Sex crimes: Rape in the third degree- 130.25; Rape in the second degree- 130.30; Rape in the first degree- 130.35; Criminal Sexual Act in the third degree- 130.40; Criminal Sexual Act in the second degree- 130.45; Criminal Sexual Act in the first degree; Persistent sexual abuse- 130.53; Sexual abuse in the first degree- 130.65; Aggravated sexual abuse in the fourth degree- 130.65a; Aggravated sexual abuse in the third degree- 130.66; Aggravated sexual abuse in the second degree- 130.67; Aggravated sexual abuse in the first degree- 130.70; Course of sexual conduct against a child in the first degree- 130.75; Course of sexual conduct against a child in the second degree- 130.80; Female genital mutilation- 130.85; Facilitating a sex offense with a controlled substance- 130.90; Sexually motivated felony- 130.91

Money laundering: Money laundering in the first degree- 470.20; Money laundering in support of terrorism in the second degree- 470.23: Money laundering in support of terrorism in the first degree- 470.24

Criminal contempt: Criminal contempt in the second degree- 215.50, Criminal contempt in the first degree- 215.51, or Aggravated criminal contempt- 215.52—only if the underlying allegation is that the defendant violated an order of protection that was designed to protect a member of the defendant’s family or household.

Sexual performance by a child: Use of a child in a sexual performance- 263.05; Facilitating a sexual performance by a child with a controlled substance or alcohol- 263.30

Assault: Luring a child- 120.70

Sex crimes: Sexual misconduct- 130.20; forcible touching- 130.52; sexual abuse in the third degree- 130.55; sexual abuse in the second degree- 130.60

As a bail reform law attorney in New York will explain, the Bail Reform Law is good news for many defendants who are in jail awaiting trial because they were not able to post bail. With a few exceptions, if they are charged with a misdemeanor or nonviolent felony, their cases will be reevaluated under the rules of the Bail Reform Law of 2020 and will be released on recognizance or with nonmonetary conditions. The cases of those charged with qualifying offenses will also be re-evaluated. If the court determines that a defendant is bail-eligible, he will be given the option to post an unsecured or partially secured surety bond. Of course, for some, the court will conclude the defendant must remain in custody without bail.

If you are facing criminal charges, the criminal process from arrest to resolution can be long, involving several court dates. While you wait for your case to be resolved, you may not have to sit in jail. Contact an experienced bail reform attorney serving New York at the Law Offices of Stephen Bilkis & Associates us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We serve those accused of crimes in the following locations: Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County, and Westchester County.