Like the federal statute, many states permit preventive pretrial
detention for individuals who have been arrested for certain more
serious crimes.
191Some states even require detention in certain cases.
192New Jersey was an exception to this rule until recently. In 2014,
New Jersey made comprehensive changes to its state bail laws. The
legislature passed a statute that shifts away from reliance on money
bail
193and voters approved a constitutional amendment to permit
detention based on public safety concerns.
194New York continues to be an outlier by prohibiting judges from
making discretionary decisions to deny bail based on public safety
concerns.
195But that does not mean that there is not preventive
191. See, e.g, VT. STAT. tit. 13, § 7553 (2009) (“A person charged with an offensepunishable by life imprisonment when the evidence of guilt is great may be held without bail.”); N.M.CONST. art. II, § 13 (outlining situations [involving certain serious felonies] where courts may deny bail); S.C.CODE ANN. § 22-5-510 (Supp. 2015) (empowering courts to deny bail for
certain violent offenses); TEX.CONST. art. I, § 11a (same).
192. These are typically cases involving capital crimes. See, e.g., MICH.COMP.LAWS ANN. § 765.5 (West 2000) (“No person charged with treason or murder shall be admitted to bail if the proof of his guilt is evident or the presumption great.”); OHIO CONST. art. I, § 9 (“All persons shall be bailable . . . except for a person who is charged with a capital offense where the proof is evident or the presumption great . . . .”).
193. 2014 N.J. Sess. Law Serv. Ch. 31 (2014) (West) (including several new provisions that shift away from monetary bail).
194. Public Question Results, supra note 10 (amending constitution to eliminate constitutional right to bail and to permit judges to order pretrial detention based on public safety concerns). As amended, New Jersey Constitution, Article I, Paragraph 11 reads, in part:
All persons shall, before conviction, be eligible for pretrial release. Pretrial release may be denied to a person if the court finds that no amount of monetary bail, non- monetary conditions of pretrial release, or combination of monetary bail and non- monetary conditions would reasonably assure the person’s appearance in court when required, or protect the safety of any other person or the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process.
The provision had previously stated: “All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great.” N.J.STAT.ANN.CONST.ART. 1, ¶ 11 (repealed 2014).
195. See N.Y.CRIM.PROC.LAW § 510.30(2)(a) (McKinney 2012) (stating that judges setting bail “must consider the kind and degree of control or restriction that is necessary to
pretrial detention in New York; for some serious felonies, as a matter
of law, defendants are ordered detained until trial.
196For other
offenses, however, New York judges are not permitted to consider a
defendant’s risk of dangerousness in making discretionary pretrial
detention decisions.
197And yet they do.
In 2015, legislation was introduced that would permit judges to
consider an individual’s potential danger to the community when
deciding whether to detain an individual.
198Those proposed changes
have not been adopted, but they have been supported by different
state and local officials, including, perhaps surprisingly, progressive
New York City Mayor Bill de Blasio.
199For now, New York judges
continue to be limited to considering flight risk in making
discretionary detention and release determinations.
In a range of state and federal cases, separate consideration of
flight risk and dangerousness is necessary for a judge to determine
secure [the defendant’s] court attendance when required”; the discretionary bail statute does not permit decisions based on public safety); see also People ex rel. Ryan v. Infante, 485 N.Y.S.2d 852, 854 (N.Y. App. Div. 3d Dep’t 1985) (citing § 510.30(2)(a) and noting “that the purpose of bail is to secure the defendant’s appearance at all proceedings before the court”) (internal citation omitted); People v. Maldonado, 407 N.Y.S.2d 393, 395 (Crim. Ct. 1978) (“The statutory structure as to bail is quite clear in that requiring the defendant’s appearance is the major consideration in fixing the amount of bail. Danger to the community does not appear to be the primary concern of the bail structure.”).
196. N.Y. CRIM. PROC. LAW § 510.30(1)(b) (“Determinations of applications for recognizance or bail are not in all cases discretionary but are subject to rules, prescribed in article five hundred thirty and other provisions of law relating to specific kinds of criminal actions and proceedings, providing . . . that [in some cases an application] must as a matter of law be denied and the principal committed to or retained in the custody of the sheriff . . . .”).
197. See supra note 195.
198. S. 5167, 2015 Leg., 238th Sess. (N.Y. 2015) (The proposed amendments provide that “[w]ith respect to any principal, the court must consider the kind and degree of control or restriction that is necessary to secure his or her court attendance when required and to assure the safety of any other person or the community”) (emphasis added).
199. Mayor de Blasio’s support was announced in the wake of the murder of a five-year veteran officer of the New York Police Department by an individual who had been released prior to trial. See A.J. Baker & J. David Goodman, Suspect in Fatal Shooting of New York Officer Was on the Run for Weeks, Officials Say, N.Y. TIMES (Oct. 21, 2015), http://www.nytimes.com/2015/10/22/nyregion/new-york-police-officer-randolph-holder- fatally-shot-east-harlem.html. The defendant was on bail at the time of the shooting and had most recently been arrested for a drug sale charge in late 2014. Id. Following the officer’s death, de Blasio expressed outrage at a press conference that the defendant had been sent to a drug rehabilitation program rather than traditionally incarcerated. De Blasio Calls For Changes In State Bail, Diversion Programs In Wake Of Officer’s Death, CBS N.Y. (Oct. 23, 2015), http://newyork.cbslocal.com/2015/10/23/de-blasio-diversion-program-changes/.