Judicial Responses to the New Bail Law


In New York, historically, the sole purpose of setting bail on a criminal defendant has been to ensure that the defendant would return to court for scheduled proceedings. Section 510.30 of the Criminal Procedure Law required the judge to consider various factors in setting bail, including the defendant’s previous record, financial resources and ties to the community.

On January 1, 2020, changes in New York’s bail law went into effect. A judge may only set bail or order pretrial detention in certain cases, such as violent felonies and a small number of misdemeanors, witness tampering and intimidation, terrorism and terrorism-related charges.

In the short time since January 1st, there has been widespread public and legislative discussion about amending the new law, as strong views both for and against the reforms have been expressed in public forums, on editorial pages and elsewhere.

The Commission does not take a position on the efficacy of the law or on proposals to amend it. The Commission takes this opportunity to remind judges that, whatever their individual views of the law may be, they are obliged under the Rules Governing Judicial Conduct to respect and comply with the law, to be faithful to the law and to maintain professional competence in the law. 22 NYCRR 100.2(A), 100.3(B)(1).

In a particular case, a judge who in good faith interprets the law need not fear disciplinary consequences for what may turn out to be legal error that is reversed on appeal. However, a judge who purposefully fails to abide by the law, e.g. to make a political point or because s/he personally disagrees with the law, invites discipline. In Matter of Duckman, 92 NY2d 141 (1998), the Court of Appeals upheld the removal of a judge for inter alia “willfully disregard[ing] the law” by dismissing accusatory instruments for being insufficient on their face, knowing they were in fact sufficient, because he disagreed with the prosecutor for pursuing the underlying cases. As the Court said:

Misconduct in Connection with Case Dispositions:
Largely consisting of transcripts of court proceedings before petitioner, the evidence establishes that petitioner willfully disregarded the law in disposing of the criminal charges in 16 cases: 13 dismissals for facial insufficiency, one purportedly in the interests of justice, and two adjournments in contemplation of dismissal (ACDs). Cases were dismissed without notice or an opportunity for the prosecution to be heard, without allowing an opportunity to redraft charges, without requiring written motions, and in the case of ACDs, without the consent of the prosecutor. What is significant for present purposes is both that petitioner dismissed these cases in knowing disregard of requirements of the law [cites omitted], and the abusive, intemperate behavior he manifested in dismissing those cases, at times not permitting the attorney to make a record of an objection either to the disposition or in response to the accusations.

In the overwhelming number of these cases it is clear that petitioner dismissed accusatory instruments for facial insufficiency because the prosecutor refused to agree to petitioner’s requests for an ACD or to offer a plea to a violation. In others, petitioner simply believed that the cases should not be prosecuted.

92 NY2d at 146.

From the 2020 Annual Report, pages 19-20.