Will Prosecutors Attempt to Neuter New York's Bail Reforms?

Reformers worry that district attorneys will subvert new rules, but prosecutors worry about those who refuse to show up for court.

In January, New York joins its neighbor New Jersey in significantly reducing demands for cash bail, establishing a system where defendants are released on the least restrictive guidelines necessary to make sure they return to court.

The reforms were pushed through in April as part of the state's 2020 budgeting process. As prosecutors and courts prepare for the new rules, Jed Painter, assistant district attorney for Nassau County (on Long Island), has been giving presentations on how these new bail rules work.

Painter has problems with these new bail rules and says so. Critics say he's encouraging prosecutors in New York to look for ways to manipulate the new system in order to keep defendants behind bars with high cash bail demands.

The push to reduce or completely eliminate cash bail is one of several recent trends by criminal justice reformers attempting to cut back on the number of people unnecessarily locked behind bars. While bail had originally been intended as a way to make sure defendants show up for court dates, it has long become a thoughtless, bureaucratic machine that often simply orders defendants to pay money or stay stuck behind bars, sometimes for weeks or months, even though they have not been convicted. The end result has been that people's pretrial detention status depended not on whether the defendant was deemed dangerous or a flight risk, but whether he or she had access to money or could pay a bail bondsman.

City & State New York listened to a podcast post of one of Painter's presentations where he gave some "suggestions" on dealing with some defendants that had the whiff of trying to subvert the new guidelines to keep them behind bars:

Painter gives what he called a "practice pointer you can tell your police": If a defendant warranted on a felony doesn't show up to court, "don't pick them up right away. Don't be their Uber," he said. "You're not going to get bail on them for that violation. Wait the 30 days, and then you've got your bail jumping charge waiting for them." …

Later in the presentation, Painter gave a strategy for when you have a "problem child"—presumably, an uncooperative defendant who won't show up to court dates. That situation would obviously frustrate prosecutors, but defendants can be held in jail awaiting trial if they have "persistently and willfully" failed to appear. Painter suggests asking the judge to require the defendant check in daily by phone or Skype. If they fail, then the defendant could be arrested—ensuring their attendance in court. "Can you do this by yourself? No. Can you talk to your administrative judges about doing this? Absolutely," Painter said.

Painter responded to City & State and some critics from civil rights and criminal justice groups. He claims they're misrepresenting his training. He also claims he's been working to help prosecutors with "compliance with these well-intended but flawed laws."

Painter's concerns aren't actually unreasonable. Part of eliminating dependence on cash bail means having plans for when some defendants don't show up for court. The good news is that other cities and states have reduced the use of cash bail significantly and are not seeing an increase in people missing court dates. Compliance remains very high. But under New York's new pretrial system, as Painter explains, missing court dates, even repeatedly, does not on its own rise to the threshold for prosecutors to demand a defendant be remanded into custody.

In his first example, if a defendant doesn't show up for court within 30 days when ordered to do so, that counts as a new felony crime that can get his or her freedom revoked. So if a defendant is deliberately uncooperative it's a way of forcing the matter. This is not a mechanism for manipulating the system, unless a court is falling down on its job of informing defendants properly about court dates and locations.

The second example of requiring defendants to check in regularly is actually how New Jersey's pretrial system successfully works, now that bail is rarely ever ordered. While defendants are not required to check in "every day," they are often ordered to call in to pretrial services weekly and even make in-person visits just so that the courts can keep track and make sure defendants are aware of future court dates and cooperating with their release orders.

The full quote from Painter makes it clear that he's thinking about systems like New Jersey and isn't really saying that he wants to make people call in every day as a method of tripping them up so they can be detained and tossed back in jail: "Remember, one of the bail revocation grounds is persistence and willful failure to appear. If you have a problem child, one of your conditions [could be] requiring you to call into court every day, or every week and that counts as a court appearance." What he's actually requesting is that New York develop a way to keep defendants connected to the court with regular calls—and not necessarily in-person visits—as a tracking mechanism. That's not a bad plan.

He may not be entirely wrong that New York worded its new bail laws poorly and did not put into place the kind of pretrial services that keeps New Jersey's system running smoothly. One of the challenges in reforming states' bail systems is that court operations and pretrial guidelines vary significantly from state to state. Each state or city that eliminates (or reduces) cash bail will have to figure out how to deal with the few people that actually are willfully causing problems while freed and refusing to come to court. The needle everybody wants to thread here is how to differentiate between those who are deliberately ignoring the courts versus those who have financial difficulties that are interfering with compliance.