George F. Hildebrandt
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Time for Change in Bail Calculations?

The Honorable Jonathan Lippman, the chief judge of New York State, focused a portion of his annual State of the Judiciary Address to the practice of holding people facing, but not yet convicted of charges in jail for long periods of time, a practice he asserted "strips our justice system of its credibility and distorts its operation." Judge Lippman's comments urged legislative reform in pretrial detention practices to increase fairness and reduce costs. Judge Lippman went so far as to submit legislation that would have shifted the legal presumption of detention to one against jail, with the burden being on the prosecution to demonstrate the defendant posed either a danger to the community or was unlikely to appear for subsequent hearings. However, this legislation has yet to gain any momentum.

Judge Lippman's concerns about pretrial detention and bail determinations have not gone unnoticed in the legal research community. The Laura and John Arnold Foundation recently announced, after $1.2 million dollars of research, an algorithm entitled the Public Safety Assessment to help judges set bail in a more uniform and cohesive manner and accurately predict which offenders are in need of pretrial detention. This effort is a result of a study of over 300 United States jurisdictions to determine what makes a defendant likely to fail to return to court or commit a new crime before trial. While this assessment is not currently in use in New York courts, the reasoning is helpful in challenging pre-trial detention of certain defendants.

What is a Bail/Detention Hearing?

After an individual is arrested, he or she is usually quickly presented to a judge. At this first hearing, a bail amount is set, which is the amount of money the judge has determined is sufficient to ensure the defendant will return to court if released from jail. Bail determinations in New York State Court are called arraignments or bail hearings. Bail determinations in Federal Court are also referred to as detention hearings.

Essentially, bail is what it will cost for a defendant to be released while his case is still in progress. If an individual is unable to pay the amount ordered, the defendant will either have to remain in jail, or seek other financial arrangements, such as a bail bond.

How Much Will Bail Cost?

In New York State Court, how much bail is set is largely determined by the judge. However, the judge will take into account the following factors when determining how much bail is appropriate:

  • The defendant's character, reputation, habits, and mental condition
  • The defendant's financial resources and employment status
  • The defendant's family ties and length of residence
  • The defendant's criminal record, including juvenile history
  • Whether the defendant has previously missed court appearances
  • The weight of the evidence in the case
  • The sentence which could be imposed if the defendant is convicted

How Does a Criminal Defense Attorney Help Me at Bail Hearings?

Defense attorneys have an opportunity to either submit oral or written applications for bail determinations. This is the defense's opportunity to explain to the judge why there is adequate reason to believe the defendant will appear when required and why he should not be held in custody while the case is pending. An experienced attorney can present evidence relating to the court's concerns and clearly illustrate why bail is appropriate in the given circumstances.

Defendants who are out on bail or bond have greater access to relevant information and witnesses than they would otherwise have while detained. This freedom is critical to early and complete preparation for trial. Contact George Hildebrant for a free consultation today.

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