NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1809
SPONSOR: Tenney (MS) TITLE OF BILL: An act to amend the criminal procedure law, in
relation to orders of bail or recognizance
PURPOSE OR GENERAL IDEA OF BILL:
To allow courts to invoke preventive detention and not grant bail to any
criminal defendant who poses a risk or danger to the community.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends section 530.20 of criminal procedure law which
prescribes the securing order authority for actions pending in local
criminal courts by denying courts the authority to release on recogni-
zance or bail, a defendant who appears to pose a risk of danger to the
community.
Section 2 amends section 530.30 of criminal procedure law which provides
authority for a superior court judge to grant recognizance or bail in
felony cases where certain local criminal courts have no authority to
prohibit such judge from ordering recognizance or bail unless it appears
the defendant poses no risk of danger to the community.
Section 3 amends section 530.40 of the criminal procedure law to prohib-
it a court from ordering recognizance or bail when the defendant poses a
risk of danger to the community when a criminal action is pending in
superior court.
Section 4 amends section 530.45 of the criminal procedure law regarding
orders of recognizance or bail after conviction but before sentencing,
to deny the court the authority to order such, when the defendant poses
a risk of danger to the community.
Section 5 amends section 530.50 of criminal procedure law pertaining to
recognizance or bail authorization or denial pending the determination
of an appeal to deny its granting if the defendant poses a risk of
danger to the community.
Section 6 amends section 530.60 of criminal procedure law relating to
securing order review to deny the granting of recognizance or bail when
the defendant poses a risk of danger to the community.
Section 7 contains the effective date.
JUSTIFICATION:
Neither the Constitution of the State of New York nor the Criminal
Procedure Law confers an absolute right to bail in all cases. The former
provides merely that "Excessive bail shall not be required" (art. I,
section 5), the latter establishes criteria for determining when bail or
recognizance is mandated, prohibited or discretionary (CPL 510.30, subd.
1; 530, subds.1,2). Risk or danger to the community is not one of the
listed criteria, and hence courts have held it may not properly be
considered by the court fixing bail in those cases.
Unlike federal law, which sets out standards that permit a court to
commit a defendant for preventive detention (deny bail) to reasonably
assure the safety of the community (18 U.S.C. Section 3142), the sole
objective to be considered when a New York court exercises discretion in
granting bail is "the kind and degree of control or restriction that is
necessary to secure
the principal's court attendance when required".
For seven weeks in 2005, Level 3 sex offender, Joseph Duncan, sexually
brutalized 8-year old Shasta Groene after allegedly murdering her 9-year
old and 13 year-old brothers, her mother and her mother's boyfriend in
Idaho. Earlier that year a Minnesota judge released Duncan on $15,000
bail after being charged with molesting a 6-year-old boy at a Minnesota
school playground, aware of his history of sexual abuse and violence
against children. Duncan subsequently jumped bail, fled the state and
headed for Idaho.
This legislation strikes at the core of one of the most serious threats
to public safety today, the failure to recognize public safety as a
criterion in deciding pre-trial and post-trial release matters by
requiring the courts to deny bail when the defendant poses a risk of
danger.
PRIOR LEGISLATIVE HISTORY:
2006: A.9501, held in Codes;
2007-2008: A.2979, held in Codes;
2009-2010: A.7139, held in Codes;
2011-2012: held in Codes.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
Undetermined.
EFFECTIVE DATE:
This act shall take effect immediately.
