New York Passed Historic Reforms to its Bail, Discovery and Speedy Trial Laws

Currently, officers have broad discretion to decide who they are going to arrest for lower-level crimes and to whom they issue DATs. This is significant because the process of being arrested, detained in the precinct before transfer to central bookings for processing, and detained in the courthouse while awaiting arraignment can often add up to 24 hours of detention before even seeing a judge.

The new law mandates that police issue DATs instead of making an arrest for all offenses up to Class E felonies. However, it’s important to note the broad exceptions. The new law’s mandatory DATs do not apply if the person: is charged with any domestic violence or sex offense or a crime where the court might issue protective orders or revoke driver’s licenses; has any outstanding warrants or has failed to appear in court in the past two years; is unable or unwilling to make their verifiable identify known; or the officer believes they may benefit from medical or mental health care.

Currently, money bail can be set on any misdemeanor or felony case. The new law requires that anyone charged with a qualifying offense* be released without bail while they await their day in court and released with no conditions unless it is proven that conditions are necessary to ensure court appearance.

The conditions of release must be nonmonetary and the least restrictive to reasonably assure return to court. A person charged with a qualifying offense who is released to await trial in the community can be subject to bail or pretrial detention at a later point if he or she persistently and willfully fails to appear in court, violates an order of protection, is accused of witness tampering or intimidation, or is charged with another felony while awaiting trial for a felony.

*Qualifying offenses include all misdemeanors (except sex offenses and contempt of court charges related to an allegation of domestic violence), all non-violent felonies (except witness intimidation and tampering, sex offenses, and incest as well as some conspiracy, terrorism and contempt charges), robbery in the second degree, and burglary in the second degree.

Currently, judges often only set two forms of bail: cash bail — which requires a family to pay the full amount of money up front, and insurance bond — which requires families to work with for-profit bail bonds companies.

The new law requires that when courts issue bail, they always issue bail in three forms. It further requires that one of these three forms must be either an unsecured bond (which only requires the accused or their family to sign an agreement promising to pay the court if the accused fails to appear) or partially secured bond (which requires a cash deposit that cannot exceed 10% of the total bond and which is returned in total when the case resolves). These two forms of bail are paid directly to the court, rather than to a private insurance company, further limiting for-profit entities in the pretrial system.

The new law requires that pretrial services or supervision, including electronic monitoring, be administered by nonprofit or government agencies. This prohibits counties, municipalities, and the state from contracting with any private and for-profit entities, ensuring that New York is shrinking and not expanding the presence of private investment and profit in its criminal justice systems. Further, people accused of crimes will never be required to pay for these services, which will serve as an important check on the criminalization of poverty.

Where instruments or tools are used to inform decisions related to release or conditions of release, the new law requires these tools be free of any discrimination on the basis of a protected class, including race, and that the tools be validated, regularly revalidated, and made publicly available on request. This is important because risk tools, which are on the rise in criminal justice systems across the country, are increasingly coming under scrutiny for their role in perpetuating racial and other biases.

While court reminders exist in parts of New York, the new law standardizes the practice by requiring that the court or pretrial services provider issue a text, call, email or mailed letter reminding people of their court dates. This has been proven to increase court appearance rates.

Because bench warrants come with severe and lasting consequences, the new law extends a grace period and the opportunity to remedy missed court appearances before a warrant is issued.

This 15 day discovery requirement can be extended by up to 30 additional days if materials are exceptionally extensive or if they are not in the DA’s actual possession despite diligent, good faith efforts. In practice, this new discovery law means that people accused of crimes will be able to make better informed decisions about their cases with knowledge of the evidence, or lack thereof, that could be used against them.

Similar to the reform above, this requirement ensures people accused of crimes have a fuller picture of the case against them in the window when it matters most.

The “speedy trial clock” — which determines whether or not a defendant’s speedy trial rights are being met — can be stopped if a prosecutor states they are “ready for trial” but the defense is not. The new laws weaken prosecutors’ ability to “game the system” and stop the speedy trial clock by cursorily stating “ready” for trial.