Bail--Are There Better Alternatives?

Continuing Legal Education Materials 

by Richard Rifkin, Consultant to the New York State Bar Association and a member of the Government Law Center's Advisory Board, who organized and moderated the program.

The Government Law Center held the first of its 2018 Anderson Breakfast programs on February 13.  This first 2018 program focused on the imposition of monetary bail in our criminal justice system, a concept that is generally recognized as badly in need of reform. As was evident from the discussion, the hard questions surround developing mechanisms to replace monetary bail as it is currently imposed.

The audience heard views of five panelists, each of whom come from a different perspective. Alphonso David, Counsel to Governor Cuomo, described the reform bill that has been proposed by the Governor and how it fits within a series of criminal justice reforms that the Governor is advocating, including discovery reform and speedy trial requirements. David explained how pre-trial proceedings would be handled if the Governor's bill were to be enacted.

Scott McNamara, President of the District Attorneys Association, discussed the subject from the perspective of the prosecutorial community. As the Oneida County District Attorney, he focused his attention on some of the significant problems that arise upstate, especially in the courts of the smaller towns and villages. Tina Luongo, who is in charge of criminal practice in New York City's Legal Aid Society, presented the views of the defense community and focused her attention on the deficiencies in the current practice in New York City.

Two other speakers presented views that go beyond the courtroom. Donna Young, a professor at Albany Law School, discussed some of the historic notions behind the bail system and how the current system developed. She also considered its impact on those who are incarcerated pending further court appearances as well as the racial impact, with those incarcerated being overwhelmingly minorities. Finally, Martin Horn, former Corrections Commissioner of both the State and New York City, discussed the impact of monetary bail on the local jail systems and the cost of maintaining those systems due to the enhanced number of individuals who are incarcerated prior to trial.

While each of the speakers offered a different view, they all recognized that changes were likely. The critical question was what changes would result and would they work as anticipated. While the Governor has presented a specific bill, there was an understanding that this bill will need to work its way through the legislative process, with changes likely.

The audience was left with many factors to consider. As one speaker said, if we don't get it right, we will be back in ten years having the same discussion and searching for the same solutions. Those in attendance were left to consider the complexities of taking a system that needs reform and finding a new mechanism or mechanisms to achieve the objectives of bail but which reflect our notions of fairness and justice in the twenty-first century.