ACCUSED AND UNCONVICTED - A BRIEF ON BAIL PRACTICES

• NCJ Number: 46590
• Author(s): C T LINKER; S F SLOAN
• Date Published: 1978
• Length: 77 pages
• Sponsoring Agency: New York State Assembly
• Corporate Author: New York State Assembly
• Sale Source: National Institute of Justice/
• Language: English
• Country: United States of America

Annotation

A HISTORY OF THE BAIL SYSTEM, THE NECESSITY FOR REFORM, FEDERAL AND NEW YORK STATE LAW AND COURT DECISIONS, AND LEGISLATIVE CONSIDERATIONS FOR CHANGING BAIL PRACTICES IN NEW YORK ARE DISCUSSED.

Abstract

NATIONWIDE REFORM EFFORTS REGARDING THE BAIL SYSTEM ARE VIEWED AS ADDRESSING THE INEQUITY RESULTING FROM OVERUSE OF HIGH BAIL. CURRENT ANALYSES SUGGEST THAT MONEY BAIL, WHICH SEVERELY DISADVANTAGES THE POOR, MAY BE REPLACED WITH A VARIETY OF FORMS OF NONFINANCIAL PRETRIAL RELEASE, THE MOST COMMON BEING RELEASE ON RECOGNIZANCE AND CONDITIONAL RELEASE. IT IS ARGUED THAT THESE NONFINANCIAL FORMS OF RELEASE RESULT IN COST SAVINGS TO LOCAL JURISDICTIONS THROUGH REDUCED JAIL POPULATIONS. EASING OF JAIL OVERCROWDING, IN TURN, MAKES SUPERVISION OF TRULY DANGEROUS DETAINED CRIMINALS SIMPLER AND MORE EFFECTIVE. IN RECOMMENDING A NEW POLICY ON BAIL IN NEW YORK STATE, IT IS SUGGESTED THAT A KEY ELEMENT BE A PRESUMPTION FAVORING RELEASE, UNLESS THE DISTRICT ATTORNEY CAN DEMONSTRATE EITHER THAT RELEASE WILL ENDANGER THE SAFETY OF PERSONS OR THE COMMUNITY OR THAT THE ACCUSED WILL FAIL TO REAPPEAR IN COURT. THIS WOULD DIFFER FROM EXISTING NEW YORK STATE PRACTICES WHICH REQUIRE THE ACCUSED AND HIS ATTORNEY TO CONVINCE THE COURT THAT PRETRIAL RELEASE IS WARRANTED. IF PRESUMPTION FAVORING RELEASE BECOMES THE PRIMARY POLICY, THE ACCUSED WOULD BE RELEASED ON RECOGNIZANCE PENDING TRIAL UNLESS THE DISTRICT ATTORNEY CAN PRESENT CLEAR AND CONVINCING EVIDENCE TO THE PRESIDING JUDGE THAT RELEASE SHOULD BE DENIED, A BAIL AMOUNT SHOULD BE SET, OR IMPOSED CONDITIONS SHOULD CURTAIL THE ACTIVITIES OF THE ACCUSED. CAPITAL CASES WOULD BE HANDLED UNDER A MORE RESTRICTIVE RELEASE POLICY. IN THESE CASES, THERE SHOULD EXIST A PRESUMPTION THAT THE ACCUSED WILL BE DETAINED UNLESS THE PRESIDING JUDGE HAS SUFFICIENT EVIDENCE TO SUSTAIN THE BELIEF THAT THE ACCUSED WILL NEITHER FLEE NOR JEOPARDIZE THE SAFETY OF ANY PERSON OR THE COMMUNITY. DETAILED SUGGESTIONS FOR CONSIDERATION IN DEVELOPING LEGISLATION ARE CONSIDERED. (RCB)