NY State Senate Bill 2017-S7852

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
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Delivered to Governor
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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 05, 2018	referred to codes

co-Sponsors

2017-S7852 (ACTIVE) - Details

See Assembly Version of this Bill:: A8820
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Rpld §500.10 subs 8-19, §510.30, Art 520, §§530.20 - 530.80, amd CP L, generally
Versions Introduced in 2019-2020 Legislative Session:: A1359

2017-S7852 (ACTIVE) - Summary

Relates to recognizance procedures and bail reform; repeals certain provisions relating thereto.

2017-S7852 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S7852

SPONSOR: SERRANO
 
TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to recognizance procedures and bail reform; and to repeal
certain provisions of such law relating thereto

 
PURPOSE OR GENERAL IDEA OF BILL:

To end cash bail in New York State.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 is the legislative intent.

Section 2 is definitions.

Section 3 repeals several sections of the criminal procedure law.

Section 4 sets the criteria for a recognizance hearing, including the
charges for which detention is the default.

Section 5 ensures that a recognizance decision will be made no later
than 48 hours after an arrest.

Section 6 describes the motion practice and evidentiary standard used in
recognizance hearings.

Section 7 expands the statutory right to counsel to recognizance hear-
ings.

Section 8 requires the court to set the least restrictive conditions on
any defendants released on their own recognizance.

Section 9 removes bail as a method of enforcement of a securing order.

Section 10 directs the Division of Criminal Justice Services to track
and publish demographic data about the dispositions of recognizance
hearings.

Section 11 repeals article 520 of the criminal procedure law.

Section 12 removes bail from section 10 of article 530 of the criminal
procedure law.

Section 13 removes bail from section 12 of article 530 of the criminal
procedure law.

Section 14 repeals sections 20, 30, 40, 45, 50, 60, 70 and 80 of article
530 of the criminal procedure law.

Section 15 sets the effective date.

 
JUSTIFICATION:

The current bail system in New York State has failed New Yorkers. Each
year, thousands of New Yorkers are incarcerated prior to a criminal
trial simply because they cannot afford to pay bail, a situation that is
clearly the criminalization of poverty. Even though the vast majority of
defendants return to court and do not reoffend when released on their
own recognizance, poor New Yorkers who are accused of a crime are often
still incarcerated for the length of their trial or, more often, until
they agree to plead guilty. Regardless of actual guilt, defendants who
are subject to pre-trial detention for as little as 48 hours experience
an increased likelihood of rearrest, in addition to work, custody, hous-
ing and immigration consequences.  Additionally, there is no correlation
between being able to afford bail and returning to court and not reof-
fending. There is no public safety rationale for maintaining our current
bail system.

Kalief Browder's story has become central to the fight for bail reform.
Kalief was 16 when he was falsely accused of stealing a backpack. He
spent three years waiting for trial on Rikers Island, mostly in solitary
confinement, because his family couldn't afford $3000 for bail. Eventu-
ally, charges were dropped, but the damage was already done. Two years
after his release, after multiple suicide attempts and several stays in
a hospital psychiatric ward, Kalief Browder hung himself in his family's
apartment.

This bill will end the practice of cash bail in New York State. It
requires every defendant to have a recognizance hearing within 48 hours
of arrest. In these recognizance hearings, both the prosecution and the
defense will present admissible evidence to the court to demonstrate
whether the defendant should be detained during the pre-trial period or
released. After the original determination is made, both the prosecution
and the defense can move to change the decision based on new evidence.

This bill also prohibits the use of risk assessment tools to make
pretrial detention or release decisions. While these tools have been
touted by some as error-proofing the decision process, replacing a human
decision with an algorithmic one requires careful investigation of the
data that is fed into the algorithm. In the case of a risk assessment
tool, the data includes racially biased criteria, including prior
arrests and convictions, employment history, and family status. As long
as racially biased data is used in a risk assessment tool's algorithm,
the decisions the algorithm renders will also be racially biased.

This bill will provide clear guidance to the court regarding recogni-
zance decisions, while also allowing the court to be responsible to
changes in the situation or new information arising during the pretrial
period. Most importantly, it will finally end the criminalization of
poverty that exists under our current bail system and reassure New York-
ers that in our court system, justice is no longer for sale.

 
PRIOR LEGISLATIVE HISTORY:

This is a new bill

 
FISCAL IMPLICATIONS:

None to the state

 
EFFECTIVE DATE:
Immediately

2017-S7852 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7852
 
                             I N  S E N A T E
 
                               March 5, 2018
                                ___________
 
 Introduced  by  Sen. SERRANO -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law, in relation to  recognizance
   procedures  and  bail reform; and to repeal certain provisions of such
   law relating thereto
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Legislative intent. The purpose of this legislation is to
 reform the process by which courts in the state  of  New  York  evaluate
 applications by criminal defendants who seek release on their own recog-
 nizance.  New  York's  current bail statute has been applied in a manner
 that has led  to  unsatisfactory  levels  of  pre-trial  detention.  The
 purpose  of  this  legislation is to ensure decarceration and release of
 individuals on their own recognizance in the  overwhelming  majority  of
 criminal  cases  by  applying  a rebuttable presumption of recognizance.
 Courts in New York must consider only admissible  evidence  at  recogni-
 zance  hearings  and must apply the least restrictive measures to ensure
 an individual's return to court.
   § 2. Subdivisions 3, 6 and 7 of section 500.10 of the criminal  proce-
 dure law are amended to read as follows:
   3.  ["Fix bail." A court fixes bail when, having acquired control over
 the person of a principal, it designates a sum of money  and  stipulates
 that,  if  bail  in such amount is posted on behalf of the principal and
 approved, it will permit him to be at liberty during the pendency of the
 criminal action or proceeding involved] "RECOGNIZANCE HEARING"  MEANS  A
 HEARING BEFORE THE COURT WHERE THE PRINCIPAL APPEARS FOR THE PURPOSES OF
 THE  COURT  CONSIDERING  RECOGNIZANCE OR COMMITTING THE PRINCIPAL TO THE
 CUSTODY OF THE SHERIFF.
   6. "Order of recognizance [or bail]" means a securing order  releasing
 a principal on his own recognizance [or fixing bail].
   7.  "Application for recognizance [or bail]" means an application by a
 principal [that] TO the court[, instead of committing him to or  retain-
 ing  him  in] THAT THE PRINCIPAL BE RELEASED INSTEAD OF COMMITTED TO the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD13444-03-7

 S. 7852                             2
 
 custody of the sheriff[, either release him on his own  recognizance  or
 fix bail].
   §  3.  Subdivisions 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of
 section 500.10 of the criminal procedure law are REPEALED  and  subdivi-
 sion 20 is renumbered subdivision 8.
   § 4. Section 510.10 of the criminal procedure law, as amended by chap-
 ter 459 of the laws of 1984, is amended to read as follows:
 § 510.10  Securing order; when required.
   1.  When  a  principal,  whose  future  court attendance at a criminal
 action or proceeding is or may be required, initially  comes  under  the
 control of a court, such court must, by a securing order, either release
 him  OR  HER on his OR HER own recognizance[, fix bail] or commit him OR
 HER to the custody of the sheriff.   EVERY  COURT  WHEN  CONSIDERING  AN
 APPLICATION  FOR RECOGNIZANCE OR COMMITTING THE PRINCIPAL TO THE CUSTODY
 OF THE SHERIFF MUST APPLY A REBUTTABLE PRESUMPTION OF RECOGNIZANCE, WITH
 THE EXCEPTION OF THE FOLLOWING FELONY CHARGES WHERE THERE IS A  REBUTTA-
 BLE PRESUMPTION OF COMMITMENT TO THE CUSTODY OF THE SHERIFF:
   (A)  CRIMINALLY NEGLIGENT HOMICIDE AS DEFINED IN SECTION 125.10 OF THE
 PENAL LAW;
   (B) AGGRAVATED CRIMINALLY NEGLIGENT HOMICIDE  AS  DEFINED  IN  SECTION
 125.11 OF THE PENAL LAW;
   (C)  MURDER  IN  THE SECOND DEGREE AS DEFINED IN SECTION 125.25 OF THE
 PENAL LAW;
   (D) AGGRAVATED MURDER AS DEFINED IN SECTION 125.26 OF THE PENAL LAW;
   (E) MURDER IN THE FIRST DEGREE AS DEFINED IN  SECTION  125.27  OF  THE
 PENAL LAW;
   (F) RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.35 OF THE PENAL
 LAW;
   (G)  COURSE  OF  SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST DEGREE AS
 DEFINED IN SECTION 130.75 OF THE PENAL LAW;
   (H) PREDATORY SEXUAL ASSAULT AS DEFINED IN SECTION 130.95 OF THE PENAL
 LAW;
   (I) PREDATORY SEXUAL ASSAULT AGAINST A CHILD  AS  DEFINED  IN  SECTION
 130.96 OF THE PENAL LAW;
   (J) KIDNAPPING IN THE FIRST DEGREE AS DEFINED IN SECTION 135.25 OF THE
 PENAL LAW;
   (K)  ARSON  IN  THE  FIRST  DEGREE AS DEFINED IN SECTION 150.20 OF THE
 PENAL LAW;
   (L) CRIMINAL POSSESSION OF A WEAPON IN THE FIRST DEGREE AS DEFINED  IN
 SECTION 265.04 OF THE PENAL LAW;
   (M)  CRIMINAL  SALE  OF  A  FIREARM  IN THE FIRST DEGREE AS DEFINED IN
 SECTION 265.13 OF THE PENAL LAW;
   (N) TERRORISM IN THE SECOND DEGREE AS DEFINED IN SECTION 490.10 OF THE
 PENAL LAW;
   (O) TERRORISM IN THE FIRST DEGREE AS DEFINED IN SECTION 490.15 OF  THE
 PENAL LAW;
   (P)  HINDERING PROSECUTION OF TERRORISM IN THE FIRST DEGREE AS DEFINED
 IN SECTION 490.35 OF THE PENAL LAW;
   (Q) CRIMINAL POSSESSION OF A CHEMICAL WEAPON OR BIOLOGICAL  WEAPON  IN
 THE SECOND DEGREE AS DEFINED IN SECTION 490.40 OF THE PENAL LAW;
   (R)  CRIMINAL  POSSESSION  OF  A  CHEMICAL OR BIOLOGICAL WEAPON IN THE
 FIRST DEGREE AS DEFINED IN SECTION 490.45 OF THE PENAL LAW;
   (S) CRIMINAL USE OF A CHEMICAL OR  BIOLOGICAL  WEAPON  IN  THE  SECOND
 DEGREE AS DEFINED IN SECTION 490.50 OF THE PENAL LAW; OR
   (T)  CRIMINAL  USE  OF  A  CHEMICAL  OR BIOLOGICAL WEAPON IN THE FIRST
 DEGREE AS DEFINED IN SECTION 490.55 OF THE PENAL LAW.

 S. 7852                             3
 
   2. THE COURT SHALL INFORM THE PRINCIPAL THAT  THE  CONDITIONS  OF  THE
 SECURING   ORDER   ARE  SUBJECT  TO  MODIFICATION  CONSISTENT  WITH  THE
 PROVISIONS OF SECTION 510.25 OF THIS ARTICLE.
   3.  When  a  securing  order is revoked or otherwise terminated in the
 course of an uncompleted action or proceeding but the principal's future
 court attendance still is or may be required and he is still  under  the
 control  of a court, a new securing order must be issued. When the court
 revokes or otherwise terminates a securing  order  which  committed  the
 principal  to  the  custody of the sheriff, the court shall give written
 notification to the sheriff of such revocation  or  termination  of  the
 securing order.
   §  5.  Section 510.20 of the criminal procedure law is amended to read
 as follows:
 § 510.20 Application for recognizance [or bail]; [making  and]  determi-
            nation [thereof in general] AND TIMING.
   1.    Upon  any  occasion when a court is required to issue a securing
 order with respect to a principal, or at any time when  a  principal  is
 confined  in  the  custody  of  the  sheriff as a result of a previously
 issued securing order, he may make an application for  recognizance  [or
 bail].
   2.   Upon such application, the principal must be accorded an opportu-
 nity to be heard, PRESENT EVIDENCE and  to  contend  that  an  order  of
 recognizance  [or  bail  must  or  should  issue,  that the court should
 release him on his own recognizance rather than fix bail,  and  that  if
 bail is fixed it should be in a suggested amount and form] BE ISSUED.
   3. THE COURT SHALL MAKE A PRE-TRIAL RELEASE DECISION FOR THE PRINCIPAL
 WITHOUT  UNNECESSARY  DELAY, BUT IN NO CASE LATER THAN FORTY-EIGHT HOURS
 AFTER THE PRINCIPAL'S INITIAL COMMITMENT TO JAIL.
   § 6. The criminal  procedure  law  is  amended  by  adding  three  new
 sections 510.25, 510.26 and 510.27 to read as follows:
 § 510.25 PROSECUTOR; MOTION.
   THE  PROSECUTOR  MAY FILE WITH THE COURT AT ANY TIME, INCLUDING AT ANY
 TIME BEFORE OR AFTER THE PRINCIPAL'S  RELEASE  FROM  CUSTODY,  A  MOTION
 SEEKING  THE PRE-TRIAL DETENTION OF THE PRINCIPAL FOR WHICH THE PROSECU-
 TOR SHALL PRESENT EVIDENCE TO THE COURT DEMONSTRATING THAT:
   1. THE PRINCIPAL WILL NOT APPEAR IN COURT AS REQUIRED; OR
   2. THE PRINCIPAL WILL OBSTRUCT OR ATTEMPT TO OBSTRUCT JUSTICE  OR  THE
 CRIMINAL PROCESS; OR
   3.  THE  PRINCIPAL WOULD THREATEN, INJURE OR INTIMIDATE, A PROSPECTIVE
 WITNESS OR JUROR.
 § 510.26 PROSECUTOR; MOTION; EVIDENTIARY STANDARD.
   A MOTION TO THE COURT SEEKING PRE-TRIAL DETENTION PURSUANT TO  SECTION
 510.25  OF THIS ARTICLE MUST SET FORTH ADMISSIBLE EVIDENCE AS DEFINED BY
 THIS CHAPTER.  THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE  PRINCI-
 PAL  BE  DETAINED  PENDING TRIAL IF THE COURT, UPON CONSIDERATION OF THE
 ADMISSIBLE EVIDENCE, DETERMINES BY A PREPONDERANCE OF THE EVIDENCE THAT:
   1. NONE OF THE PRE-TRIAL SUPERVISION SERVICES AVAILABLE  WOULD  ENSURE
 THE PRINCIPAL'S APPEARANCE IN COURT WHEN REQUIRED; OR
   2.  THE  PRINCIPAL WOULD INJURE OR INTIMIDATE A PROSPECTIVE WITNESS OR
 JUROR IF RELEASED ON HIS OR HER OWN RECOGNIZANCE.
 § 510.27 MOTION FOR REHEARING; SECURING ORDER.
   1. THE PARTIES, AFTER A DETERMINATION BY THE COURT AT  A  RECOGNIZANCE
 HEARING,  AT  ANY  TIME  BEFORE  TRIAL, MAY SUBMIT A MOTION TO THE COURT
 SEEKING TO VACATE OR MODIFY THE SECURING ORDER.   A  MOTION  SEEKING  TO
 VACATE OR MODIFY A SECURING ORDER MUST INCLUDE ADMISSIBLE EVIDENCE SHOW-

 S. 7852                             4
 
 ING  A  CHANGE OF CIRCUMSTANCES WITH RESPECT TO THE CONDITIONS SET FORTH
 IN SECTION 510.25 OF THIS ARTICLE.
   2.  THE  COURT  WILL  DETERMINE  BY  A  PREPONDERANCE  OF THE EVIDENCE
 PRESENTED WHETHER THE SECURING ORDER SHOULD BE VACATED OR MODIFIED.
   3. THE COURT SHALL REOPEN A RECOGNIZANCE HEARING UPON ITS OWN APPLICA-
 TION, AT ANY TIME BEFORE TRIAL, IF  THE  COURT  FINDS  THAT  INFORMATION
 EXISTS  THAT WAS NOT KNOWN TO THE PROSECUTOR OR PRINCIPAL AT THE TIME OF
 THE RECOGNIZANCE HEARING THAT HAS A MATERIAL BEARING ON  THE  CONDITIONS
 SET  FORTH  IN  SECTION 510.25 OF THIS ARTICLE. THE COURT WILL MAKE THIS
 INFORMATION KNOWN TO THE PROSECUTOR AND PRINCIPAL PRIOR TO THE  RECOGNI-
 ZANCE HEARING.
   §  7.  Section  510.30 of the criminal procedure law is REPEALED and a
 new section 510.30 is added to read as follows:
 § 510.30 RIGHT TO COUNSEL.
   A PRINCIPAL OR DEFENDANT HAS THE RIGHT TO THE  AID  OF  COUNSEL  AT  A
 RECOGNIZANCE  HEARING. IF HE OR SHE APPEARS UPON SUCH RECOGNIZANCE HEAR-
 ING WITHOUT COUNSEL, HE OR SHE HAS THE FOLLOWING RIGHTS:
   1. TO AN ADJOURNMENT FOR THE PURPOSE OF OBTAINING COUNSEL; AND
   2. TO HAVE COUNSEL ASSIGNED BY THE COURT IF HE OR SHE  IS  FINANCIALLY
 UNABLE TO OBTAIN THE SAME.
   § 8.  Section  510.40 of the criminal procedure law is amended to read
 as follows:
 § 510.40  Application for recognizance or [bail]  COMMITMENT;  [determi-
              nation thereof,] form of securing order and execution ther-
              eof.
   1.    An  application  for  recognizance  or [bail] COMMITMENT must be
 determined by a securing order which either:
   (a)  Grants the application and releases the principal on his  OR  HER
 own recognizance; or
   (b)  [Grants the application and fixes bail; or
   (c)]   Denies the application and commits the principal to, or retains
 him OR HER in, the custody of the sheriff.
   2.  Upon ordering that a principal be  released  on  his  OR  HER  own
 recognizance, the court must direct him OR HER to appear in the criminal
 action  or  proceeding  involved  whenever  his OR HER attendance may be
 required and to render himself OR HERSELF at all times amenable  to  the
 orders  and processes of the court.  If such principal is in the custody
 of the sheriff [or at liberty upon bail at the time of the  order],  the
 court must direct that he OR SHE be discharged from such custody [or, as
 the  case  may be, that his bail be exonerated]. ANY RESTRICTIONS PLACED
 ON A PRINCIPAL RELEASED ON HIS OR HER OWN RECOGNIZANCE MUST BE THE LEAST
 RESTRICTIVE THAT WILL ENSURE THE PRINCIPAL'S RETURN TO COURT.
   [3.  Upon the issuance of an order fixing bail, and upon  the  posting
 thereof,  the  court  must  examine  the  bail  to  determine whether it
 complies with the order.  If it does, the court must, in the absence  of
 some  factor  or circumstance which in law requires or authorizes disap-
 proval thereof, approve  the  bail  and  must  issue  a  certificate  of
 release,  authorizing  the  principal to be at liberty, and, if he is in
 the custody of the  sheriff  at  the  time,  directing  the  sheriff  to
 discharge  him  therefrom.    If the bail fixed is not posted, or is not
 approved after being posted, the court must order that the principal  be
 committed to the custody of the sheriff.]
   §  9.  Section 510.50 of the criminal procedure law is amended to read
 as follows:
 § 510.50  Enforcement of securing order.

 S. 7852                             5
 
   When the attendance of a principal confined  in  the  custody  of  the
 sheriff is required at the criminal action or proceeding at a particular
 time  and  place,  the court may compel such attendance by directing the
 sheriff to produce him OR HER at such time and place.  If the  principal
 is  at  liberty  on his OR HER own recognizance [or on bail], his OR HER
 attendance may be achieved or compelled by  various  methods,  including
 notification  and  the issuance of a bench warrant, prescribed by law in
 provisions governing such matters with respect to the particular kind of
 action or proceeding involved.
   § 10. The criminal procedure law is amended by adding  a  new  section
 510.60 to read as follows:
 § 510.60 STATISTICAL REPORTS.
   THE  DIVISION  OF  CRIMINAL  JUSTICE SERVICES WILL COMPILE AND PUBLISH
 DATA ON THE DISPOSITION OF ALL  RECOGNIZANCE  HEARINGS  IN  ALL  COURTS,
 DISAGGREGATED BY COUNTY AND INCLUDING THE FOLLOWING INFORMATION:
   1. THE AGGREGATE NUMBER OF RECOGNIZANCE HEARINGS;
   2. THE AGGREGATE NUMBER OF DEFENDANTS AND PRINCIPALS WHO WERE HEARD AT
 RECOGNIZANCE HEARINGS;
   3. THE RACE, ETHNICITY, AGE AND SEX OF EACH DEFENDANT OR PRINCIPAL;
   4. THE CRIMES EACH DEFENDANT OR PRINCIPAL WERE CHARGED WITH; AND
   5. THE DISPOSITION OF EACH HEARING WHETHER FOR RECOGNIZANCE OR COMMIT-
 MENT.
   § 11. Article 520 of the criminal procedure law is REPEALED.
   §  12. Section 530.10 of the criminal procedure law is amended to read
 as follows:
 § 530.10 Order of recognizance [or bail]; in general.
   Under circumstances prescribed in [this] article 510 OF THIS TITLE,  a
 court, upon application of a PRINCIPAL CHARGED WITH A CRIME OR A defend-
 ant [charged with or] convicted of an offense, is required or authorized
 to order [bail or] recognizance for the release [or prospective release]
 of  such  PRINCIPAL  OR  defendant,  OR  COMMITMENT OF SUCH PRINCIPAL OR
 DEFENDANT during the pendency of either:
   1.  A criminal action based upon such charge; or
   2.  An appeal taken by the defendant from a judgment of conviction  or
 a sentence or from an order of an intermediate appellate court affirming
 or modifying a judgment of conviction or a sentence.
   §  13. Paragraph (a) of subdivision 11 of section 530.12 of the crimi-
 nal procedure law, as amended by chapter 222 of the  laws  of  1994,  is
 amended to read as follows:
   (a)  revoke  an  order  of recognizance [or revoke an order of bail or
 order forfeiture of such bail] and commit the defendant to custody; or
   § 14. Sections 530.20, 530.30, 530.40, 530.45, 530.50, 530.60,  530.70
 and 530.80 of the criminal procedure law are REPEALED.
   § 15. This act shall take effect immediately.

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Senate Bill S7852

Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

co-Sponsors

2017-S7852 (ACTIVE) - Details

2017-S7852 (ACTIVE) - Summary

2017-S7852 (ACTIVE) - Sponsor Memo

2017-S7852 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S7852

Share this bill

Sponsored By

Jose M. Serrano

Archive: Last Bill Status - In Senate Committee Codes Committee

co-Sponsors

Luis R. Sepúlveda

2017-S7852 (ACTIVE) - Details

2017-S7852 (ACTIVE) - Summary

2017-S7852 (ACTIVE) - Sponsor Memo

2017-S7852 (ACTIVE) - Bill Text download pdf

Comments