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.

NEXT: NYPD Officers Pointed Guns Inside a Busy Subway Car in an Arrest Caught on Camera

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  1. If someone is arrested for a felony and doesn’t show up for court, that alone should be cause to revoke their bail. The fact that it isn’t enough until they disappear for 30 days shows what a joke and a lie the whole thing has become.

    This is being sold to the public as a way for honest people who will show up to court not being held in jail just because they can’t make bail. But clearly that is not the case. You can be a bum and miss the court appearances and still get a second chance. That is bullshit and undercuts the entire program in the long term.

    The public is never going to put up with criminals being turned lose over and over again. Selling this thing as a zero tolerance when it is in fact nothing but a “never throw anyone in jail pretrial unless they have been given a million chances” will just cause the public to sour on the whole thing and the resulting backlash will result in the system being worse than it is now.

    Expecting someone to call in once a day is not “setting them up for failure”. Jesus Christ, how badly do they want to stay out of jail? If they don’t care enough to even make a phone call, then they clearly are not taking the situation very seriously and should not be out on the streets.

    This is a perfect example of why I generally hate criminal justice reformers. They are not interested in reform. They just want to let criminals out of getting punished. And since the public is never going to tolerate that, all criminal justice reformers ever do is discredit the cause of reform and enrage the public into even more draconian measures.

    1. This is a perfect example of why I generally hate criminal justice reformers. They are not interested in reform. They just want to let criminals out of getting punished.

      There are too many victimless crimes on the books. That’s where the reform needs to happen. Any reforms that do not address that are going to let people who committed crimes with actual victims avoid punishment.

      1. I just learned today that owning a stuffed owl is a felony in Maryland (maybe elsewhere) unless you can show proof that is has been passed down from family (not sure the historical date it starts at).

      2. Yeah, I think there are multiple problems with the current CJ system:

        – the process itself (a lot of plea deals just seem like coerced confessions to me, for instance)

        – the existence of crimes for things that have no victim

        – the use of incarceration as a catch-all punishment, when probably the only thing it really succeeds in doing is temporarily removing criminals from the ability to commit crimes on the streets. I’m not saying that’s always a bad thing, but unless you support life w/o parole for nearly every crime, it’s not a practical strategy.

      3. I agree that we need reform. This is why I hate the reformers so much. They inevitably turn out to be just leftists trying to cause problems and destroy the system. They inevitably just discredit the cause of reform and make things worse.

    2. Jesus Christ, how badly do they want to stay out of jail? If they don’t care enough to even [blank], then they clearly are not taking the situation very seriously and should not be out on the streets

      That blank could be filled in by all sorts of things you wouldn’t like.

      1. They were arrested and charged with a crime you fucking half wit. You do realize people actually are criminals. Not everyone in jail is some innocent drug dealer.

        I really wonder what the fuck is wrong with some of you people. Do you think that someone charged with a crime is under no obligation to show up at trial? Or to even let anyone know where they are?

        I guess you fucking morons think we should have a voluntary justice system where people repent and voluntarily submit to being punished for their crimes or something.

    3. >>The public is never going to put up with criminals being turned lose over and over again.

      only disagreeing to the extent this literally goes on every day.

    4. Do you work for the bail industry?

  2. that keeps New Jersey’s system running smoothly.

    Fake News senses are tingling.

    1. How New Jersey and the phrase “running smoothly” ended up in the same sentence is baffling.

      1. Branco’s pizza in Medford, New Jersey will keep you running smoothly.

  3. The rare exception to the rule of headlines framed as questions. Next, we will investigate the question of bears shitting in woods.

  4. At first I though this read “Attempt to Neuter Ball Reform.”

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