Criminal Justice Insider

As we have previously reported on our January 1, 2020 blog post, New York State introduced sweeping criminal justice reform. The crown jewel of this effort was dramatic changes to the monetary bail system. Under the reform bill, misdemeanors and certain non-violent felonies were no longer eligible for monetary bail, and defendants charged with many of these crimes had to be released on their own recognizance.

These changes were met with mixed reviews. Criminal justice advocates applauded the reforms which served to ensure that impoverished defendants were not held for extended periods on minor offenses due to their inability to post bail. By contrast, many media outlets and commentators decried the reforms as a threat to public safety because repeat offenders were being released on their own recognizance only to commit new offenses shortly after their release.

As part of the 2021 New York State budget, approved by the legislature on April 3^rd, Governor Cuomo and the New York State Legislature have scaled back the reform after a mere four months. The new law, not yet in effect, will add the following crimes as those in which the court can impose cash bail:

• Promoting a sexual performance by a child (PL Sec. 263.10)
• Strangulation in the second degree when committed against a family member (PL Sec. 121.12)
• Unlawful imprisonment against a family member (PL Sec. 135.10)
• Aggravated vehicular assault (PL Sec. 120.04)
• Assault in the third degree when charged as a hate crime (PL Sec. 120.00)
• Arson in the third degree when charged as a hate crime (PL Sec. 150.10)
• Grand larceny in the first degree (PL Sec. 155.42)
• Any crime resulting in death
• Failure to register as a sex offender where the defendant is a level 3 offender.

Additionally, certain other sex offenses and crimes involving money laundering in support of terrorism were made eligible for cash bail.

Most notably, the courts will now have the power to require cash bail in any instance where the defendant has been charged with a felony or class A misdemeanor while released on their own recognizance or other pretrial condition. When setting such cash bail for repeat offenders, a prosecutor must meet a slightly higher burden and demonstrate “reasonable cause to believe that the defendant committed the instant crime and any underlying crime.” This revision will appease those critics who felt that the previous iteration of bail reform failed to safeguard the public against repeat offenders.

While these changes have been approved by both the Governor and the Legislature, it is not clear precisely when they will take effect as they appear in the 2021 budget. We will update this blog when the new changes become enacted law.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533