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DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK

STATEMENT ON PROPOSED CHANGES TO NEW YORK’S BAIL STATUTE

March 22, 2018– Albany, New York: The District Attorneys Association of the State of New
York (DAASNY) acknowledges that minor modifications to New York State’s bail and discovery
statutes could enhance our criminal justice system. The proposals being discussed currently,
however, go too far and raise significant public safety concerns. DAASNY strongly advises
against including any changes to the bail system in the budget bill so they can be fully vetted and
discussed with prosecutors, law enforcement officials and legislators in order to avoid any
unanticipated negative consequences. Unfortunately, those who are vigorously pressing these
changes today are not fully recognizing the realities of human behavior in real-life scenarios and
how the criminal mind operates to the detriment of victims, society and indeed, even the
offenders themselves.

New York certainly has a lot to be proud of, as the 5th safest state in the country and the safest
large state. We have reduced our prison population to the levels of less populated states like
Maine and other small states. In the past two decades, since 1999, New York State has reduced
our prison population by 31.5 percent, from a high of 72,649 inmates to 49,835 today. Such
statistics represent positive change that is both tangible and quantifiable.

New York currently has one of the most innovative bail statutes in the country. Case law now
requires that judges consider whether a defendant can afford bail. Our current bail statute allows
judges to release first-time or low-level offenders on their own recognizance. Most, if not all,
communities also have a pre-trial supervision program to release those who may constitute a
flight risk with community supervision, not bail. The bail statute gives judges nine different
options for bail, including options that do not require a defendant or their family to pay any
money up front and the law also requires judges to provide two forms of bail to defendants. A
judge can set:

• cash bail;
• an insurance company bail bond;
• a secured surety bond
• a secured appearance bond;
• a partially secured surety bond;
• a partially secured appearance bond;
• an unsecured appearance bond;
• or payment by credit card

These options give judges discretion on how to set bail when they deem it is necessary. When
someone is arrested a judge can choose to release that person on their own recognizance. Indeed,
for most misdemeanors and low level crimes defendants are released on their own recognizance.
Meaningful reform that strikes a proper balance between an individual’s rights and public safety
should include a modification to the statute that specifically allows judges to use monitoring
systems as part of a no bail release. If a judge does set bail, a defendant is already entitled to
have that bail decision reviewed by another judge in a higher court. The defendant, or the
prosecutor, may request a bail review hearing at any time to look at whether the bail was set
properly or in an appropriate amount.

New York is also a very large state geographically. We are a diverse state with nuanced regional
differences and unique obstacles experienced by the many individual counties. Any proposal
that seeks to overhaul a process that is already contributing to positive safety trends- a status that
other states currently wish to duplicate - must be scrutinized carefully.

At a time when we are using all available resources, tools and strategies to combat what we
collectively acknowledge as the worst drug crisis our state and our country have ever
experienced, we have to remain ever mindful of the many unintended consequences of sweeping
changes to our bail system. Even well intentioned but ill-advised measures in the name of reform
may operate to allow certain drug dealers to remain on the streets after multiple arrests, thereby
empowering them to continue the flow of dangerous and deadly drugs into our communities. So
too, not being able to temporarily detain someone with a severe addiction to heroin may result in
a preventable overdose death. We are also concerned about our ability to protect victims of
domestic violence if we restrict the discretion of judges to incarcerate repeat offenders, chronic
abusers of orders of protection and batterers whose release even on misdemeanors endangers their
victims.

Rushing through sweeping changes to the bail system in New York State would be irresponsible
and would likely undermine public safety. This is not an issue that can simply be lumped in the
state budget bill with an April 1 deadline, mere days away. The full ramifications of releasing
thousands of people upon arrest should be carefully discussed and scrutinized to ensure the
wellbeing of New Yorkers in all parts of our great state.

DAASNY encourages and fosters communication, cooperation, training and consultation among
and on behalf of the district attorneys and their staffs for matters concerning the prosecution of
crime in New York State and improving the legal system. It is DAASNY’s collegial approach
and the fostering of communication between offices both large and small, upstate and downstate,
with a particular emphasis upon ethical issues facing prosecutors, that helps to ensure greater
fairness, transparency and accuracy within the criminal justice system.

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