Before January 1st, 2020, someone accused of violating an order of protection would most likely have to pay bail in order to walk free. But yesterday, a 38-year-old woman pleaded not guilty and left Manhattan Criminal Court without putting down a single dollar.
“I’m just glad that I’m free,” she said.
Instead of bail, the judge ordered supervised release—a program that’s expected to expand significantly due to bail reform. The woman has to check in on a regular basis with caseworkers until her trial.
The woman, whose violation did not involve domestic violence, didn’t want Gothamist/WNYC using her name. She said she’d previously spent time in jail because she couldn’t make bail and was afraid that could happen again after her recent arrest, despite the reforms that went into effect. She’s now living in a homeless shelter and just enrolled in a job training program.
“It would have just put a hold on everything I worked hard for,” she said.
The woman also said she hoped the pretrial service agency she’s supposed to meet with will help her find permanent housing. These programs can connect clients with various social services, but their primary function is to ensure defendants return to court.
For this woman, the new bail law did exactly what supporters set out to accomplish. It prevented her from having to spend even a single night in jail just because she didn’t have the money to walk free. Supporters note that bail has a disproportionate impact on people of color, who are more likely to be low-income and to have been arrested than whites. They point to the case of Kalief Browder, a young man who committed suicide after being held in Rikers for three years because he couldn’t post $3,000 bail after being accused of stealing a knapsack.
The state’s new law prevents judges from setting bail on almost all misdemeanors and non violent felonies. They also have to consider the least restrictive conditions for every defendant, including those accused of violent felonies that are still eligible for bail. New York judges can only consider a defendant’s risk of not returning to court.
But politicians and prosecutors believe the law should be changed so they can weigh whether a defendant poses a significant danger—the standard used in most other states. Those calls got louder in the past week after recent anti-Semitic attacks in New York City. Tiffany Harris, who was accused of assaulting three Orthodox Jews in Brooklyn last week, was arrested Sunday on another assault charge a day after being released on her own recognizance. On Monday a judge ordered release with supervision, but she was back in court Wednesday and held for a psychiatric evaluation after a third arrest, according to the New York Post.
Those in Manhattan Criminal Court Thursday morning were charged with offenses ranging from driving under the influence to grand larceny and assault. Whenever Judge Ann Thompson ordered supervised release for a defendant, she warned them that they must return to court or the court could set more restrictive conditions on their release—including bail if they’re accused of an additional felony.
Seth Steed, managing attorney for the criminal defense practice at Neighborhood Defender Service of Harlem, said arraignments seemed to be moving slower than usual as judges and attorneys alike were acclimating to the new bail laws.
“This is a sea change in laws for the good, for the better,” he said. “And I think everyone wants to get it right."
Yesterday, there were several cases where defense attorneys asked for their clients to be released on their own recognizance with no conditions. This happened with a man accused of beating and choking a woman and attempting to destroy her property. His attorney said he had no prior criminal convictions. But the judge ordered release with supervision and issued a protective order for his alleged victim.
The judge also sided with the prosecution in a different case by ordering a woman accused of an assault to a higher level of supervised release, with more monthly meetings, than what the defense attorney sought. The prosecution cited her mental health issues, but the defense said she was already in a form of treatment.
Without referring to any specific case, Steed said defense attorneys have a duty to ask for release without conditions whenever possible. “Our clients have busy lives,” he explained, adding that in-person appointments, even if twice a month, can be onerous. “Some of them have jobs, some of them have places to be.”
In a few cases yesterday, prosecutors did ask Judge Thompson to set bail. One involved a man accused of violating an order of protection. This charge is eligible for bail if the protective order was issued because of an allegation of domestic violence. The prosecutor cited the man’s long rap sheet and requested that bail be set at $15,000. But the judge set it at $3,000, citing the requirement that she consider the least restrictive monetary condition. Along with cash and bond, she gave the defendant a third option for making bail, as required: a partially secured bond of $9,000 that requires putting down much less money up front.
The judge declined to set bail, however, on another case involving a man accused of biting his brother’s face so badly he required stitches. The prosecution noted that the man faced up to five years in prison if convicted of this charge of assault in the second degree, and brought up his previous record. But judges still have discretion, and don’t have to set bail. Thompson ordered supervised release instead. Afterward, a courtroom observer told the man, who had a white bandage wrapped around the top of his head, that he had the new bail laws to thank for his freedom. The man nodded.
Judges’ decisions will be closely watched as politicians and the public debate whether the new law is sparing low income defendants from unnecessary detention, or creating a public danger. But these decisions aren’t based on arguments, alone. The city’s Criminal Justice Agency calculates each defendant’s risk of not returning to court. Aubrey Fox, CJA’s executive director, said this release assessment was recently adjusted for the new law. It gathers information about each defendant’s prior record, community ties, and finances.
“Do they have an address? Do they have a phone number? Those things are strong predictors of whether they will show up,” he explained.
It’s not clear yet if judges will test the limits of this system—for example, by ordering defendants to come to court more often. Failing to do so will result in a warrant and can also trigger more restrictive release conditions, including bail.
“It’s a concern people have raised,” Fox acknowledged, adding that he hopes everyone follows the spirit of the law. “The way that New York City works is trying to help people succeed in pretrial release. The goal is to get people to come back to court during this period of pretrial supervision successfully.”
Beth Fertig is a senior reporter covering immigration, courts, and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.
