Governor Cuomo's proposed bail legislation is a bold and progressive step toward bail reform for New York state. It would eliminate monetary bail for low-level offenders, some of whom spend months in custody because they cannot post even the modest sums required to obtain their pre-trial release. But the devil is always in the details, and the details should be examined closely before new legislation is enacted.

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The Proposal

(1) The Governor's proposal is binary: Either a defendant is released under non-monetary conditions or he is detained. Gone are cash bail, unsecured bonds, partially secured bonds, and secured bonds. Non-monetary conditions can be imposed only to help ensure the defendant's appearance in court. Those conditions can include limits on association and travel, pre-trial supervision with the county pre-trial services office (which would be newly created) or electronic monitoring paid for by the county. Electronic monitoring, however, would be available only if the defendant is charged with a felony or a family offense.

(2) Pre-trial detention is available only for a limited class of offenders: (i) defendants charged with a class A felony (mostly murder); (ii) defendants charged with witness intimidation; (iii) defendants charged with class B or C violent felonies, except for certain burglaries and robberies; (iv) defendants who pose an immediate risk of physical harm to a family member; and (v) defendants who “persistently and willfully fail to appear in court on the current case” despite “persistent efforts” by the pre-trial services agency to secure their appearance.

(3) If a defendant falls into one of those five categories, the People may seek the defendant's pre-trial detention. Detention is available only after a hearing at which the court finds clear and convincing evidence that the defendant “poses a high risk of flight before trial or … a current threat to the physical safety of a reasonably identifiable person or persons” and that no other conditions in the community will suffice to contain [those] risks.” The hearing must be held within “three working days from the people's motion.” (The defendant may be temporarily detained in the interim.) The rules of evidence do not apply at the hearing, but the defendant has the right to cross examine prosecution witnesses, testify and present his own witnesses. There is also a right to some discovery.

(4) If the defendant (i) is charged with a crime that subjects him to a term of life imprisonment or (ii) is alleged to have committed a crime involving serious injury or threat thereof while in the community under non-monetary release conditions for a crime involving serious physical injury or a threat thereof or (iii) threatened a prospective witness or juror, the burden shifts to the defendant to prove that he does not pose a current threat to the physical safety of a reasonably identifiable person or persons.

(5) The bill limits pre-trial detention to 180 days on a felony and 90 days on a misdemeanor. Like the Speedy Trial Act, it has exclusions that toll the running of the clock.

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Implications

What should one make of this proposal? Consider three hypothetical cases:

Case One. The defendant is arrested for shoplifting, a misdemeanor. It is his tenth shoplifting arrest in the past six years. He has eight convictions for the crime. On his most recent conviction, six months ago, he received a 90-day sentence. His record shows seven bench warrants for failing to appear, including one in each of his last three cases. Thirty-one years old, he lives with his mother.

Under the Governor's proposal, the defendant must be released on non-monetary conditions, and electronic monitoring cannot be ordered because his arrest is for a non-domestic violence misdemeanor. If he fails to appear for his next court appearance, the conditions could be modified but he could not be subject to electronic monitoring or detention. Only when his failures to appear become “persistent” (perhaps the third time) could he be held for a detention hearing.

One more point about this case. If the defendant is arrested for shoplifting while released on non-monetary conditions, no adverse consequences seem to follow. On his new arrest, he must be released on conditions. And if he is rearrested after having failed to appear twice on his old case, that, too, would have little effect. Only his failure to appear “in the current case” can trigger a detention hearing.

Case Two. The defendant is arrested for rape and larceny. The rape occurred in a park, and the defendant and the victim had no prior relationship. The defendant is caught a block away and identified by the victim and is in possession of her wallet. He has a prior conviction for rape for which he served six years. He was released from prison six months ago. He has no prior bench warrants. Twenty-eight years old, he lives in an apartment with a friend.

The defendant is charged with a class B violent felony and therefore would be eligible for a detention hearing. The People, however, would have to prove, by clear and convincing evidence, that he poses a current threat to the physical safety of a reasonably identifiable person or persons. That would be a difficult showing, since the defendant seems to select his victims randomly. Electronic monitoring cannot be imposed because it is available only to contain risk of flight, of which there is little evidence.

Now assume that the defendant is released on non-monetary conditions and is rearrested for another rape two months later. The facts are much the same. Could he now be detained? Can it be said that he poses a danger to a reasonable identifiable person or group of persons? If he threatened serious physical injury in both cases (the one on which he was released and the new case), the burden of proof would shift to him. Even then, he would be released if he showed, by a preponderance of the evidence, that he did not pose a current threat to a reasonably identifiable person or group of persons.

Case Three. The defendant is arrested for defrauding three elderly victims of $400,000. According to the complaint, he used an alibi and fake ID in the course of his scheme. He lives in Texas in a home worth $800,000. This is his first arrest. The only alternative here would be release on non-monetary conditions. Electronic monitoring does not seem feasible. Under current law, a judge might require a bond secured by the defendant's home, but that option would not be available.

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Bail reform is a complicated issue. The Governor's proposal would keep defendants from languishing on Rikers Island on low cash bail for non-violent offenses (often misdemeanors) while they await trials that are anything but speedy. That is a cause for celebration. But eliminating all forms of monetary bail in all cases and sharply limiting the cases that are detention eligible may go too far. Our legislators should discuss the issues fully before leaping forward.

Paul Shechtman is a partner at Bracewell in New York and teaches evidence and criminal procedure at Columbia Law School.