As a New York state court judge who has presided over felony criminal cases in Manhattan for the past 11 years, I am gratified that the Legislature and the Governor are on the verge of enacting landmark reforms to our state's pre-trial securing order system designed to significantly reduce the number of criminal defendants who are incarcerated before trial. But I also have significant concerns about the specific reforms now being negotiated.

First, in my view, it would be a mistake to eliminate all forms of monetary bail under any circumstance, as has been proposed. Significantly reducing the use of monetary bail would be a better option. Second, our state's new securing order system must not enact inflexible rules which judges would then be required to mechanically apply to defendants who have particular characteristics, for example, a rule which would require specific kinds of securing orders for defendants charged with particular kinds of crimes. Third, the new system should not impose technically complex and potentially unworkable procedures on courts issuing securing orders. What is needed are new presumptive guidelines which channel judicial discretion in a manner which significantly reduces pre-trial incarceration, while allowing judges to confront each unique case before them with the widest possible array of options. Finally, for any reform to be successful, it must be backed by the significant financial resources which will be necessary to safely manage a large number of new criminal defendants in the community.

Erasing the disparities between wealth and poverty in the singular area of bail is a noble goal. But judges setting securing orders do not deal in abstractions. They confront unique individuals. A judge's goal in setting a securing order is to impose the least onerous conditions which are necessary to secure the defendant's appearance as a case progresses. Judges have three general options to do that. The most stringent, which is rarely employed, is remand, that is, to confine the defendant in jail until a case is resolved. Remands are often imposed in murder prosecutions or for certain other very serious charges, or where a defendant has already absconded while a case is pending. But remand is extremely rare in other circumstances. The majority of criminal defendants in New York City are released on their own recognizance or with “non-monetary” conditions, like participation in a drug treatment program. The middle option is bail.

Deleting this middle option while leaving the two outer options intact would significantly reduce the disparities between wealthy and poor defendants. For a judge like me who is tasked with making securing order decisions, however, such a policy would make little sense.

Many defendants, even those without great means, are released after having bail imposed through a bail bond. A defendant can obtain a bail bond by posting a percentage of the bond amount with a bail company, which may be 10 percent of a bond amount or greater. That means, for example, that if a court requires a bail bond of $5,000, a defendant who pays $500 (or more) to a bail bond company will obtain release. Many criminal defendants cannot afford such payments, but some defendants (or their families) can. The elimination of monetary bail would mean that such defendants would either have to be remanded or released on recognizance or with non-monetary conditions. In some cases, however, non-monetary conditions (like electronic monitoring, drug testing or even periodic checks by a pre-trial services agency) might be more onerous than monetary bail. In still other cases, a defendant who may have been released after paying a bond, under variations of the proposed reforms, might instead be remanded. In either case, eliminating monetary bail would hurt those defendants, not help them.

The Governor's bail reform bill would eliminate “unsecured appearance bonds.” That is a securing order in which a defendant does not have to pay anything, but merely must promise to pay a sum to the court if he does not appear. The bill would eliminate “partially secured appearance bonds.” That is a type of bond in which a defendant must post a sum to the court which is a percentage of the bond the court sets, but the posted amount may be less than 10 percent. In the example here, a court could set a $5,000 bond but require the defendant to post, say, 1 percent ($50) rather than $500. An additional advantage of such bond forms is that, unlike commercial bonds, they do not require that any paid fees be forfeited if a defendant appears in court as directed. Such “alternative” monetary bail forms have historically been little used. But that is changing. New York's court system is making active efforts to educate judges about such alternative monetary bail forms and encourage judges to use them. Indeed, the Governor's proposal would allow any condition to be imposed to secure a defendant's appearance, so long as it did not involve money.

Monetary bail has been a mainstay of the criminal justice system because the possible forfeiture of a portion of one's assets provides a powerful motivation to appear on the next court date. Many criminal defendants, who may be facing incarceration upon a criminal conviction, need an extra incentive to appear in court as directed. Sometimes, contact and monitoring by a pre-trial services agency are not enough. Some defendants have a history of not appearing in court as directed in prior proceedings. Some struggle with substance abuse, mental health issues or homelessness which makes complying with the strict scheduling rules of a criminal case challenging. Taking away the “middle option” of bail for defendants who a court determined needed a bail condition would mean courts would either have to find a way to remand a defendant to custody or be forced to release a defendant with potentially inadequate assurances he would return to court. Indeed, there will likely continue to be cases where judges, defense lawyers and prosecutors all agree on monetary bail packages as the most fair and effective way to secure an appearance.

Our current system has resulted in an onerous degree of pre-trial detention based on unaffordable bail conditions, in part, because it provides powerful incentives to justice system participants which promote incarceration. For prosecutors, incarceration promotes plea agreements. A defendant in jail is more likely to plead guilty (especially if a plea involves jail or prison) than a defendant who is free. Prosecutors, in my experience, often ask for bail conditions which they reasonably believe are necessary but I think are excessive. A defendant in jail prior to trial is more likely to ultimately be convicted than a defendant at liberty. Prosecutors seek to convict defendants of crimes where they believe there is proof beyond a reasonable doubt of guilt. Pre-trial detention facilitates those convictions.

Pre-trial incarceration also changes a defendant's incentive to proceed quickly to trial. A defendant who is incarcerated may be very anxious to move a case forward. A defendant at liberty will often benefit the longer a trial is delayed. Witnesses may become unavailable. Their memories may fade. Evidence may be lost. A prosecutor knowledgeable about a case may leave the office. Plea offers may improve. Prosecutors want to resolve cases efficiently. Pre-trial incarceration also facilitates that.

But it is one of the unspoken truths of the current regime that defense lawyers, who believe a plea may be in their clients' best interests, also often find it easier to convince a client to accept an advantageous plea if the defendant is in jail. It is very difficult to convince a defendant at liberty to voluntarily go to prison, even if, by doing so, he avoids the likelihood of going to prison after a trial for a much longer time. That is not to argue that pre-trial incarceration benefits defendants because it causes some of them to make better decisions. The fact that pre-trial detention encourages or even coerces pleas is one of the current system's greatest evils. But the nuances of how the securing order system should be reformed are anything but simple. The criminal justice system is overwhelmingly a system of guilty pleas—not trials. Dramatically changing the securing order system will have many effects which will be impossible to predict, no matter how deliberative and transparent a process precedes it.

Judges will be tasked with managing the fallout, while at the same time ensuring that the significant reductions in case backlogs which have been achieved in the past few years through the court system's “Excellence Initiative” are not compromised. New York is also a state of great diversity. The pre-trial systems I work with in Manhattan are very different from those in Cattaraugus County. Any bail reform legislation will have to be flexible enough to accommodate the pre-trial systems which exist in every part of the state.

Incentives that promote incarceration also work on judges. A defendant who is incarcerated pending trial because he cannot make bail will appear in court on the next date. A defendant who has posted bail (or whose family has posted bail) has a powerful incentive to return also. A defendant at liberty may be less likely to appear, or at least may be less likely to appear on the date and time set for his appearance. Worse, the at liberty defendant may commit a new crime, even an horrific one. At that point, the finger is pointed at the judge. The prosecutor, so this narrative almost invariably proceeds, asked for a high bail but the judge demurred. The judge released the defendant on a bail he could make or on his own recognizance. Then, the defendant committed a terrible crime.

Here is the second unspoken truth of the current system. These possibilities occur to judges. Under current New York law, we are generally prohibited from considering whether a defendant is a public safety threat when we set a securing order. We must think only about the conditions which are necessary to ensure a defendant's appearance. But the two issues are not easily separable. A defendant who poses a great flight risk may also be very dangerous. Bail decisions are often made quickly. They allow judges wide discretion. In this environment, public safety concerns, even unconsciously, may bleed into a judge's determinations about flight risks.

Perhaps the single most significant issue which is now being debated regarding bail reform is whether judges should consider public safety threats (rather than only flight risks) in setting bail, as other states do. But those public safety issues already loom unspoken in securing order decisions. They would become even more salient if the middle option of bail were eliminated. Instead of allowing judges to set a reasonable bail which a defendant might or might not be able to post, the court would have to either confine or release the defendant. Faced with this binary choice, with the knowledge that release (absent remand) would be certain, public safety concerns might loom larger than ever.

The third problem is what is not salient for judges or prosecutors under the current system: the devastation which is caused to defendants and those who love them by pre-trial incarceration. As a judge, once I say “$10,000 bond or $5000 cash”, the securing order decision is over. I move on to the next case. But that is only the beginning for a defendant and his family who cannot afford a bail I have set. I will not be with the defendant or his family as they struggle to survive confinement on Rikers Island for a crime for which they are presumed innocent. Judges must periodically visit correctional facilities. When I do, I am always horrified by the reality of what it is I do every day to my fellow human beings. It is also disturbing that while I often have a great deal of say over whether a defendant goes to jail and for how long, I usually have nothing to say about what conditions he will face once he gets there.

So while there are valid reasons to retain monetary bail in some cases, there are also powerful imperatives to reign in the current system, to fight the incentives driving pre-trial incarceration and to impose new rules to counter them. The question the Legislature is grappling with is how to do that. The way not to do it, in my view, is to eliminate the middle option of monetary bail. The other pitfall to avoid would be to set inflexible rules which eliminated the authority judges needed to adjudicate individual cases. The most effective way to modify the current system would be to better channel, rather than eliminate, judicial discretion.

It is tempting in the current debate to believe that legislation can be written which will define which defendants need to be remanded and which should be released—to presume that the complexities of human behavior can be reduced to a legislative formula that judges would then mechanically follow. It is tempting to write legislation which would micro-manage each procedural step a judge would have to take while presiding over a busy calendar of cases in setting a securing order, to establish a host of new procedures which, viewed from a faraway policy lens, would appear to help ensure that each defendant was treated fairly. I served as a counsel to the State Assembly responsible, at the staff level, for negotiating criminal justice legislation for 13 years before I became a judge. I understand the well-intentioned desire to write such laws.

But the notion that creating inflexible rules governing judicial securing order decisions would create an effective pre-trial system is wrong. Judges know that each defendant is unique. A defendant facing a low level non-violent felony charge, for example, does not necessarily pose a low flight risk. It may be the opposite. I have presided over many cases of defendants charged with low-level non-violent felonies who have been convicted of 30, 40 or 50 misdemeanors; previously absconded on multiple occasions; have no address; are struggling with substance abuse and mental illness and who, without a stringent securing order, will not likely appear in court again. On the other hand, some defendants charged with serious violent crimes may pose little flight risk.

Absconding defendants also impose significant costs. They delay the resolution of cases. But they also consume precious police resources, to look for and bring defendants back to court. These confrontations then create the possibility for additional violence. Absconding defendants may pose a public safety threat. They erode public confidence in the justice system. Even once apprehended, moreover, if a defendant has absconded for a long time, the ability of a prosecutor to prove the case against him may be significantly impaired.

Societal attitudes about pre-trial incarceration are changing rapidly but so are judicial bail decisions. A landmark study released just weeks ago by the New York City Criminal Justice Agency which compiled over 5 million pre-trial release decisions over three decades concluded that “since 1987 courts [in New York City] have moved further and further away from the use of monetary forms of pretrial release towards release without money. In fact, for the first time in over three decades, in 2018 the volume of release without money was more than three times that of money bail.” (Pretrial Release Without Money: New York City, 1987-2018, The New York City Criminal Justice Agency, by Aubrey Fox and Stephen Koppell, J.D., Ph.D. (No. 44, February 2019)). The report found that the New York City jail population had declined from a high of nearly 22,000 in 1991 to 7,862 at the beginning of 2019. In 2016, New York City implemented a city-wide supervised release program which provides structured alternatives to monetary bail. The volume of money bail cases in New York City dropped by 23 percent between 2017 and 2018 alone. All of this has been achieved without changing a single word of New York's bail statutes.

If the Legislature wants to set more stringent limits on pre-trial detention but still give judges the discretion we need to review cases individually, they should create general presumptive rules and guidelines, rather than technical, detailed and inflexible requirements. Judges are very good at applying presumptions and proof burdens. It is what we do. If the Legislature tells us to apply a presumption of release with non-monetary conditions unless we find that certain criteria are met which we believe necessitate monetary bail, we will do it. Don't tie our hands. Don't establish complex procedural rules which, while they look great on paper, may have a rash of unintended negative consequences and be difficult or impossible to implement in busy courtrooms. Establish the goals you want us to achieve. Set the general rules of the road. Then let us do our jobs.

The New York State Justice Task Force, a court system body with a wide array of members including judges, prosecutors, defense lawyers, law enforcement officials, victims' advocates and others recently completed an extended study of how New York's bail system could be improved. (New York State Justice Task Force: Report on Bail Reform, February 2019 (the author of this article is not a member of the Task Force).) They recommended a rebuttable presumption of release for defendants facing misdemeanor or certain non-violent felonies and a host of other reforms to significantly improve the securing order system including increased education and training for judges and court staff and an expansion of pre-trial services. They also narrowly approved a limited proposal to allow judges to consider public safety threats in issuing securing orders in certain cases. They did not conclude that monetary bail should be eliminated. They did not recommend inflexible rules which would eliminate judicial discretion. They sensibly designed a proposal which would be far more effective, in my view, in creating a fair and effective securing order system than eliminating bail. Many other variations on the Task Force model could be imagined.

Bail reform will also require a shift in resources, away from jails and to courts, local government agencies and not-for-profit organizations, like probation departments, drug treatment programs, mental health services and pre-trial agencies. These are the entities which would collectively be responsible for implementing non-monetary bail conditions. This cannot be an afterthought. It must be a contemporaneous adjunct to statutory reform. That will be no simple feat given the State's current fiscal challenges. When New York closed mental hospitals decades ago with the beneficent goal of transferring mentally ill patients to community residences, the hospitals closed but the community care was not adequately funded. If an analogous result occurs after bail reform, public safety will be compromised.

My years as a counsel in the Legislature did not leave me cynical about what goes on in Albany. It left me with a profound respect for the men and women who represent us and a reverence for the statutes they create. My fellow judges and I will implement whatever reforms the Legislature enacts with as much fealty to the Legislature's intent as we can. But we are all also hoping that when the Legislature agrees on a final statute, they get it right.

Daniel Conviser is Acting State Supreme Court Justice, Manhattan Criminal Term.