Albany Criminal Defense Attorneys Explain Recent New York State’s Bail Reform Law

Chances are you have already heard and read stories about what this law does.  Here’s some hard facts and information that may help you better understand what’s going on.

What is bail reform?

Generally speaking, before bail reform, cash bail or bond could be set for any offense.  From minor traffic tickets to murder.  There were many factors a court could consider – but surprisingly, only a defendant’s risk of flight mattered.  Dangerousness was NOT one of the criteria a state court could consider when determining if bail should be set or not.

Bail reform now lists “qualifying offenses” and unless your charge is on that list, then bail cannot be set, and the person charged with that crime must be released from custody.

What charges can a court set bail on? What charges qualify for bail?

  • Most violent felonies
  • Witness intimidation
  • Class A (the highest) felonies except for specified drug-related ones
  • Most sex offenses including felonies, incest, and misdemeanors contained in a specific part of the law
  • Conspiracy to commit murder
  • Money laundering in support of terrorism
  • Any felony terrorism offense except for “Making a Terrorist Threat”
  • Various types of Criminal Contempt

If you are charged with one of the above, then the bail system works largely as it did before, meaning the court will consider various criteria to decide if you are a flight risk.  If you are not, then you should be released without conditions, to appear again on your next court date.

Once set, can my bail amount be raised?

Bail reform also tackles this issue.  Obviously, if you made bail on an offense that qualifies for bail under the new rules, and you skip a court date, or are alleged to have committed a new crime, you can reasonably expect that amount to be increased.

Can bail ever be set on charges that are not on the list above?

A court may set bail for a charge it otherwise could not if there is clear and convincing evidence that:

  • A failure to appear in court is persistent and willful; or
  • A person violated an order of protection; or
  • A person is now charged with intimidating or tampering with a witness; or
  • If you were originally charged with a felony and released, and while the charges are pending you are arrested and charged with a new felony.

These are very important.  Many recent articles and stories are saying people who are charged with non-qualifying offenses are free to commit crimes, free from having any bail set.  To the contrary, failing to appear, violating a court order, or committing a new crime is a quick and easy way for a judge to set bail on a case you otherwise had a right to be free on.

What if I don’t show up for court?


There are some exceptions here, but the basic idea is that most of the time people who miss their court date don’t do so because they are fleeing.  Work, school, a doctor’s appointment, and childcare are just some of the things people may place importance on.  In such a case, the court must provide 48-hours (2 days) to allow you to voluntarily show up in court, with your attorney if you have one (which you should).  Unless this missed date is considered “persistent and willful” (see above) you should be released again with a new date.

Did New York’s bail reform go too far?

It’s far too small a sample size to say anything with certainty yet.  We also should wait for statistics from the entire state system as opposed to looking at individual fringe cases.

A recent report on the Onondaga County Jail (which includes Syracuse) found that prior to bail reform, roughly half of those put in jail were released within three days.  Those 50% are now simply not being jailed at all, instead of three days or less.  Those that were housed longer were typically those charged with violent felonies, or probation or parole violations, of which bail is still legal in 2020.

Are you or a loved one dealing with bail or incarceration prior to conviction?  LaMarche Safranko Law is headquartered in Albany, New York, with offices in Clifton Park and Plattsburgh.  Our lawyers represent individuals charged with any level of crime in state and federal courts throughout New York state.  Call our criminal defense lawyers at (518) 982-0770 or contact us.