Geoffrey K. Bickford Co-Chair Rhonda Tomlinson Co-Chair Criminal Justice Section

TESTIMONY OF THE HON. JOSPEH KEVIN MCKAY (RET.) ON BEHALF OF THE CRIMINAL JUSTICE SECTION OF THE NEW YORK COUNTY LAWYERS ASSOCIATION AT THE NEW YORK CITY COUNCIL HEARING ON BAIL REFORM

June 17, 2015

 

Introduction

Good afternoon, my name is Joseph (Kevin) McKay and I am a retired judge from New York Supreme Court (Criminal) and a member of the Criminal Justice Section of the New York County Lawyers Association (“NYCLA”). The NYCLA Criminal Justice Section appreciates the opportunity to submit testimony to the New York City Council regarding bail reform in New York. The views expressed today are those of the NYCLA Criminal Justice Section, have not been approved by the NYCLA Board of Directors and do not necessarily represent the views of NYCLA.

 

Those who practice in New York City’s criminal courts are well aware of the problem of low-dollar bail, which keeps thousands of indigent defendants incarcerated for months on misdemeanors and non-violent felonies. This problem has been well-documented recently in a variety of news outlets. The statistics, which I am not here today to repeat, are staggering. There is a well-documented need for bail reform in New York City and across the state.

 

I would like to note at the outset that the NYCLA Criminal Justice Section is cognizant of the jurisdictional limitations of the City Council, in that many of the reforms proposed by the Criminal Justice Section, and others, focus on codifying changes to the Criminal Procedure Law. But, importantly, the City Council can, in addition to support necessary legal reform, provide crucial funding and support to pre-trial services like the Criminal Justice Agency’s current program, which allows defendants to receive critical services, but still remain accountable to the court, all while remaining at liberty and continuing to work, attend school and be with their families.

 

In 2014, the NYCLA Criminal Justice Section published a report, addressing concerns with then-pending legislation by Chief Judge Lippmann to reform New York’s bail law. The report also proposed several reforms the Section believed would be helpful in reducing the number of pre-trial detainees at Riker’s Island who are unable to make bail that is only in the hundreds or low thousands of dollars. I am here today on behalf of the NYCLA Criminal Justice Section to discuss the recommendations from our bail reform report with the hope that this recent spate of attention will spur action at the city and state level to reform the bail system.

 

Expand Pre-Trial Release Programs

The NYCLA Criminal Justice Section believes there should be an expansion of pre-trial supervised release programs, like those run by the New York City Criminal Justice Agency in Queens and now in Manhattan. These programs select clients in arraignments who meet a specific set of criteria, chiefly that they are a moderate risk for failure to return to court according to CJA’s own screening methodology, are charged with non-violent felonies, and have a minimal criminal history.  This program was piloted in Queens County and has recently been expanded to Manhattan. The program conditions a defendant’s release on meeting with CJA social workers who can screen for substance abuse and connect the defendant with benefits, job training, rehabilitation programs, and other needed services.

 

Pre-trial release supervision programs result in fewer pre-trial detainees, and provide a process for those ensnared in the criminal justice system to access needed services. These programs should be expanded to the other boroughs, if not statewide, and should eventually be expanded to include those charged with violent felonies. The costs of these programs are far less than the costs of housing inmates at Rikers Island and local jails and can be supported by reinvesting reduced corrections costs in community-supervision programs.

 

Require Three Forms of Bail to be Set

This Criminal Justice Section recommends that the Criminal Procedure Law be amended to require a judge to set three forms of bail in all misdemeanor cases. Despite the fact the bail is virtually always set in two forms—cash or fully secured bond—New York law actually authorizes nine different forms of bail.

 

Presently, if a judge in New York sets an amount of bail on a defendant, she or he must provide at least two methods of payment. Traditionally in New York City, those two forms have been cash or insurance company bail bond. The requirement that at least two forms of bail be set does not prevent a judge from setting two different amounts of bail. Thus, a judge frequently sets a cash bail, and then a higher form of insurance company bond, knowing that the defendant, his or her family and friends will only be required to pay the bail bondsman a percentage of the bail amount set. However, the law does not require that these are the two forms that must be set, or that they must be set in tandem.

 

However, as mentioned, cash and insurance company bail bond are only two types of authorized forms of bail and are, in fact, the most onerous for the defendant to make. Every other type of bail requires either that less cash or none at all be put up front to ensure a defendant’s release. The vast majority of criminal defendants in New York City are at or below the poverty line. Ensuring that defendants have the option of partially secured or unsecured bail would allow more defendants to be released pre-trial. Defendants released on less onerous forms of bail are still responsible to the court for financial penalties if they fail to appear, just as with other forms of bail.

 

If the Criminal Procedure law is amended to require three forms of bail, judges would be free to set cash and insurance company bail bond, but would then also have to select a third type, which would inherently be less burdensome and more feasible for the defendant to make. This would ensure that defendants who might be considered flight risks would have a financial incentive to return to court, beyond the legal requirements and penalties for failing to do so, while also allowing far more defendants charged with low-level, non-violent offenses to be released from pre-trial custody.

We also recommend that funding be provided to study the rate of return for defendants who sign or post the third, less restrictive form of bail, to determine if the law should be expanded to include those charged with non-violent felonies as well.

 

Reduce Penal Law Section 221.10 to a Violation

The NYCLA Criminal Justice Section also recommends additional alterations to the Penal Law and Criminal Procedure Law that would reduce problems related to the length of pre- trial detention and the number of detainees. On several occasions since the beginning of the Cuomo Administration, there have been efforts to decriminalize public possession of marijuana, currently codified in Penal Law section 220.10 as a B misdemeanor. The Section recommends that public possession of small amounts of marijuana be reduced to a violation. As has been well documented, New York City arrested over 50,000 people for misdemeanor marijuana possession charges in 2011 and there are two lawsuits against the NYPD alleging that there is a practice of falsely arresting people for the misdemeanor of possession of marijuana in public.  Many of those arrested receive Desk Appearance Tickets (DATs), and are thus not subjected to processing through central booking and the typical arraignment process. Those receiving DATs are far less likely to have bail set. Decriminalizing public possession of marijuana would increase the number of arrestees receiving a Desk Appearance Ticket or a summons. This would, in turn, cut down on the number of people processed through central booking and traditional arraignments, ensuring fewer people would be subject to a bail determination. Correspondingly, all of the players in the court system who must now work diligently to ensure that non-DAT defendants are arraigned within 24 hours will have more time to spend on clients with more serious charges.

 

Discovery Reform as a Means of Reducing Pre-Trial Detention Periods

The Section also recommends the reexamination of the discovery process as codified in Criminal Procedure Law § 240.20 and case law, most notably People v. Rosario (9 N.Y.2d 286 (1961)). Under New York’s antiquated discovery procedure, the bulk of the evidence the prosecution has and intends to use need not be turned over until after a jury is sworn or during the pendency of a pre-trial hearing, dependent on various factors and the nature of the witness. Practically speaking, in counties that continue to abide strictly by the Rosario rule, most discovery is not turned over until immediately before a case begins a hearing or trial, regardless of the severity of the charge.

 

Some counties have developed a more flexible and fair discovery system. Known generally as Open File Discovery or Discovery by Stipulation, some evidence and documents are turned over early in the process, after arraignments but well before trial. However, as these systems are not codified in or mandated by law, there is considerable variance in the breadth of materials turned over and the timing of disclosure, which can result in trial delays. For several years, the Criminal Justice Section has supported and advocated for comprehensive legislation on discovery reform, such as the proposal put forward by the Legal Aid Society. The lack of discovery leaves the defendant at a substantial disadvantage in terms of information and the ability to prepare a case, develop a case theory, interview witnesses, and find favorable evidence. Early and regular disclosure of evidence remedies these concerns, and also reduces potential Brady violations and wrongful convictions.

 

Discovery reform could also decrease the length of time that defendants spend incarcerated pre-trial at a substantial cost savings to taxpayers. When prosecutors turn over discovery earlier in the process, defense attorneys can review the documents with their clients and conduct their own investigations. Through this process, the strengths and merits of the case can be evaluated at a much earlier time, which will, in turn, assure that a substantial number of cases are resolved before trial. Depending on the sentence, defendants may be released, sentenced to upstate prison terms, or serve their time in City facilities. No matter the outcome, they will be removed from pre-trial detention status, reducing the backlog of cases in the City’s Criminal Courts, and saving money. Perhaps even more pertinent, enhanced pre-trial discovery will afford both sides the opportunity to use the materials to advocate for or against release during post-arraignment appearances where the issue is raised. While under the proposed legislation, an incarcerated defendant would have an automatic right to a bail review, a defense attorney armed with new discovery could argue at any point for a change in bail status based on changed circumstances. This would assuredly result in more otherwise incarcerated defendants securing release pre-trial.

 

Conclusion

It is the hope of the NYCLA Criminal Justice Section that recent media attention and today’s hearing will spur much needed bail reform in New York. Thank you again for the opportunity to be here today.