Since March, suspects charged with low-level or non-violent crimes in New York City can be released from custody without having to post bail under a new arrangement to reduce the number of inmates in the city’s crowded jails. Last year, Mayor Bill de Blasio’s administration announced a $17.8 million fund that now allows judges in New York City to substitute bail with a modernized supervision system for an estimated 3,000 low-risk suspects.

Referred to as Supervised Release, the new system includes daily check-ins, text message notices, and linking suspects to behavioral treatment and drug counseling resources. Through 2015, about 41 percent of the criminal defendants in New York City’s courts each year were released on their own recognizance, and another 14 percent – about 45,000 people – were held on bail. Studies showed that poor, minority individuals accused of low-level crimes were more likely to get stuck in jail because they could not afford even small amounts of bail.

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“That is unacceptable,” Mayor de Blasio told the Daily News when he announced the Supervised Release program last year. “If people can be safely supervised in the community, they should be allowed to remain there regardless of their ability to pay,” the mayor insisted. Elizabeth Glazer, Director of the Mayor’s Office of Criminal Justice, said, “Unnecessary detention imposes substantial costs on both the individual behind bars and the city.” The initiative is being funded by $4 million from the city and $13.8 million from seized-assets money collected by Manhattan District Attorney Cyrus Vance, Jr.

WHO IS HURT BY THE TRADITIONAL BAIL SYSTEM?

When an individual is charged with a misdemeanor or a felony, a court can release the defendant without bail, set a bail amount, or order pretrial detention. Defendants at that time should contact an experienced New York criminal defense attorney as quickly as possible. Bail can be used to prevent flight risk and to protect the public from additional crimes the defendant might commit before a trial. But the research studies tell us that bail decisions inevitably and disproportionately hurt people of color, poor people, and the disabled.

Activists have urged New York City to reform its bail system for years. The system’s capacity for injustice was highlighted last year by the suicide of Kalief Browder, who was originally 16 years old when he became trapped in the New York City jail system for more than three years and fell through the cracks because he could not post bail. Browder reportedly languished and suffered beatings at Rikers Island while awaiting a trial. After a jail stay that included more than four hundred days in solitary confinement, in 2013, Browder’s case was dismissed.

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Two years later he was dead. Browder hanged himself with an electrical cord at his mother’s home in the Bronx in 2015. Kalief Browder was 22 years old. Reportedly, his tragic story is one reason why Mayor de Blasio felt compelled to move ahead quickly with the Supervised Release program. The city’s renewed interest in reducing its jail population – without regard for a defendant’s ability to pay bail – is part of what bail expert and legal scholar Tim Schnacke of the Center for Legal and Evidence-Based Practices calls “a full-blown bail reform movement.”

HOW IS SUPERVISED RELEASE BEING IMPLEMENTED?

The city has invested substantially in supervised release programs in all five boroughs. The Center for Court Innovation is expanding its program in Brooklyn to the Bronx and Staten Island. The New York Criminal Justice Agency and the Center for Alternative Sentencing and Employment Services are expanding comparable programs that have been operating in Queens since 2009 and in Manhattan since 2013. The mayor’s office estimates these programs will supervise about 3,000 people this year, and that within three years, the city’s jails will be able to send home about two hundred more people each day.

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A risk-assessment tool that consists of eight questions determines a defendant’s eligibility for Supervised Release in New York City. Felony convictions in the last nine years, warrants, and the defendant’s full-time work or activity are considered. Supervision can include weekly or monthly personal visits and/or phone calls. It all depends on the defendant’s “risk assessment score.”

Some criminal justice activists fear that rigid risk-assessment algorithms might be a barrier to people who need Supervised Release the most. There’s also the concern that more monitoring in neighborhoods that are already over-policed may do more harm than good. The level and intensity of supervision remain a concern as Supervised Release expands across New York City, but most experts are cautiously optimistic.

If a defendant on Supervised Release falls out of contact by missing a personal visit or a phone call, and the defendant remains out of contact for forty-eight hours, a judge can issue an immediate arrest warrant or wait until the defendant’s next scheduled court appearance. Supervised Release introduces a new level of intrusion and scrutiny into the lives of people who are presumed innocent. Robyn Mar, the deputy managing director of criminal defense practice at the advocacy group and legal aid provider Bronx Defenders, says, “The vast majority of people already come back voluntarily and shouldn’t be subject to pretrial detention or restrictions at all.”

WHAT IS THE FUTURE OF THE BAIL SYSTEM?

Some activists for inmates now want New York City to completely do away with a money-based bail system. That’s what officials have done in Washington, D.C. where defendants now are either held in custody because they are considered public safety risks or flight risks, or else they are simply released and given a court appearance date. In New York, however, that kind of extensive reform would have to be approved by the state’s legislators.

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Alex Crohn, general counsel at the Mayor’s Office of Criminal Justice, discounted concerns that Supervised Release might be overly-intrusive. “In the grand scheme of things, supervised release is a relatively light touch,” Crohn said. “It’s not mandatory drug treatment; it’s check-ins. For individuals who can be safely supervised in the community, this program is doing a bit more to ensure that people show up for court.” Those with additional questions about Supervised Release in New York City or any other aspect of criminal law in this state should consult with an experienced New York criminal defense attorney.

On any day of the year, jails in the United States hold about 730,000 people awaiting trials. Some of them will be tried in a reasonable amount of time. Others will remain in pretrial detention for months or in some cases years, often because they simply cannot afford bail. Prolonged pretrial detention unnecessarily inflicts severe economic, physical, and emotional hardship on defendants who are supposed to be presumed innocent. New York City’s Supervised Release program may or may not be the ultimate solution – time will tell – but it’s almost certainly a step in the right direction.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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