A Fairer, Safer, and More Just System for All New Yorkers: Domestic Violence and New York Bail Reform


 
 
On January 1, 2020, bail reform laws went into effect in New York that eliminated cash bail for thousands of defendants across the state. In step with other reforming jurisdictions across the country, New York aimed to ensure that a defendant’s freedom before trial would not be determined by the individual’s ability to pay. Unlike other reforming jurisdictions, however, New York’s bail laws do not include public safety as a legitimate factor for judges to consider when setting release conditions. Some domestic violence advocates have expressed concern for victims’ safety during the pretrial period in domestic violence cases. This Note explores the potential impact of New York’s bail reform laws on domestic violence cases and whether any mitigating measures may be implemented to promote victims’ safety. 
 
 



INTRODUCTION
On January 1, 2020, New York State's criminal justice reform went into effect, aiming to create a more just system through speedy trial, discovery, and bail reform laws. 1 Each part of the reform bill is designed to work together to address mass incarceration in New York's jail and prison system by lowering reliance on incarceration while maintaining public safety. 2 In particular, the bail reform laws eliminate cash bail for most defendants so that defendants are no longer detained before trial solely due to their inability to pay the bail amount. 3 Overall, the criminal justice reform bill aims to reduce the prison population in New York State without sacrificing safety. 4 In recent years, a movement to end mass incarceration has gained prominence across the country. Civil rights litigator and legal scholar Michelle Alexander published The New Jim Crow: Mass Incarceration in the Age of Colorblindness more than ten years ago, propelling the issue of overincarceration of predominantly young Black and Hispanic men to the national stage. 5 Mass incarceration has been called "the civil rights crisis of our time" 6 and combatting mass incarceration has become a political bipartisan issue. 7 Pretrial detention contributes significantly to mass incarceration in the United States. Local jails today contain more people awaiting trial than people who have been convicted 7 According to a national survey of registered voters, three-quarters of Americans believe the criminal justice system needs significant improvements, including 68% of Republicans, 78% of Independents, and 80% of Democrats. Memorandum from Robert Blizzard, Public Opinion Strategies to Interested Parties, National Poll Results (Jan. 25, 2018), https://www.politico.com/f/?id=00000161-2ccc-da2c-a963-efff82be0001 of a crime. 8 Many of those detained pretrial are held merely because they cannot afford to pay the bail amount for their release. 9 New York State is just one jurisdiction that has pursued criminal justice reform by addressing the cash bail system. In August 2018, then-Governor Jerry Brown signed legislation to abolish California's cash bail system, 10 although a statewide referendum has since stalled the legislation from going into effect. 11 In 2017, the New Jersey Criminal Justice Reform Act took effect, moving New Jersey's pretrial system from a predominantly cash bail system to a risk-based system. 12 Civil rights groups have filed lawsuits in federal courts across the country, attacking municipal bail systems. 13 In 2017, the Federal District Court in the Southern District of Texas granted a preliminary injunction, enjoining Harris County's misdemeanor bail system-the third largest bail system in the country-from detaining defendants who are unable to afford money bail. 14 Many reforming jurisdictions aim to eliminate or decrease judges' reliance on cash bail but allow judges to either set bail or impose pretrial detention if there is a risk to public safety. 15 An increasing number of jurisdictions use risk assessments to determine whether a defendant should be released. 16 The goal in the risk-based reform model is twofold: to ensure that (1) low risk defendants are not detained pretrial merely because they cannot afford to pay bail and (2) high risk defendants are not released merely because they can afford to pay bail. 17 For example, New Jersey's criminal justice reforms move the state's system away from cash bail by instructing courts to make pretrial release decisions based on a public safety assessment. 18 New York is noteworthy for its move away from cash bail without incorporating a consideration of public safety in pretrial release decisions. 19  misdemeanors and non-violent felonies, subject to some exceptions, 20 and includes a presumption of release rebuttable only by a "risk of flight to avoid prosecution." 21 New York State has taken a significant step toward addressing injustices in the bail context, but some domestic violence advocates criticize the reform out of concern that the new pretrial regime may pose risks for victims of domestic violence. 22 Thousands of New Yorkers report incidents of domestic violence to law enforcement each year. 23 Police intervention has the potential to disrupt a cycle of escalating violence, 24 and some domestic violence advocates credit bail with providing a mechanism to buy time for the victim to exit a dangerous situation and seek help. 25 When an offender is merely highlights.pdf [https://perma.cc/E8NT-HMUD] ("New York was, and remains, the only state in the country that precludes judges from taking into account any consideration of public safety when setting bail or imposing pretrial detention."). But see Mayson, Dangerous Defendants, supra note 16, at 516 n.120 ("New York is often said to exclude consideration of dangerousness, but it does authorize courts to issue protective orders as conditions of release, and other aspects of its pretrial law also suggest otherwise.").
processed and released after arrest, however, he is free to return to the victim. 26 When the offender and victim share a residence, that may be the most natural-if not the onlyplace to go. The immediate release of a violent offender may signal that abuse is not taken seriously as a criminal matter, which may discourage victims from reporting truly dangerous situations. When a change in law has the potential to affect thousands of cases, it is important to evaluate whether the new regime may have unintended consequences that endanger victims' safety.
The recent New York bail reform has the potential to leave some New Yorkers vulnerable to violence during the period between arrest and trial. This Note explores the possible impact of the reform on victims of domestic violence and whether such impact may be reduced through legislative changes or changes in judicial practice. Part I reviews the history of bail and the development of bail reform. It looks at the reform measures in New Jersey as a point of comparison. It also presents the New York bail reform scheme. Part II identifies and explores the ways in which the New York bail reform laws may leave victims vulnerable to violence. Finally, Part III presents potential mitigating measures that could be incorporated into New York's pretrial scheme.

I. Background
The administration of bail determines whether a criminal defendant will be released or detained in the time between arrest and trial. In a typical case, a defendant is arrested and arraigned before a judge. 27 A judge sets bail, and if the defendant can post bail or pay a bondsman to post bail, they are released. 28 If the defendant is unable to post bail, they are detained in jail. 29 The traditional theory behind this process is that the payment of bail will ensure the defendant's appearance at trial. 30 The linking of monetary payment and appearance at trial, however, is not an obvious move and contributes to inequities in bail 26 Some domestic violence advocates credit bail as an imperfect mechanism to keep high-risk defendants away from the victim. Kluger & Zwang, supra note 22 ("As experts in our legal system and in working with victims, we know that cash bail, though a flawed system, has become a stand-in way for judges to protect victims. It allows them to keep high-risk defendants in jail, and away from the victim, before a trial."). 27  administration. 31 Part I.A recounts the historical background of bail to understand how the bail doctrine developed in the United States and why we may question its continued use. Part I.B presents the current state of bail in the United States. Part I.C introduces the New York bail reforms.

A. History of Bail Reform
The practice of setting money bail to ensure a defendant's return to court traces its roots back to medieval England, when the Anglo-Saxon legal system transitioned to a process of settling private disputes by monetary payment rather than blood feuds. 32 To guard against the risk of the defendant fleeing before trial, the legal system required a personal surety-usually a defendant's friend or family member-to pledge to guarantee the defendant's appearance at trial and the payment of the fine. If the accused fled, the surety paid the accuser, rendering a trial unnecessary. 33 Following the Norman conquest, capital and corporal punishment replaced money fines for many offenses. 34 Nevertheless, because the incentive to flee before trial remained, courts continued to require money bail even after the bail amount was divorced from the underlying fee.
When the colonists settled in America, they imported much of English law, including the laws surrounding bail administration and the practice of releasing defendants prior to trial. 35 The Supreme Court confirmed in Stack v. Boyle that the purpose of bail was to assure the defendant returns to court. 36 The Court held that bail set higher than the 31  ike the ancient practice of securing oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused"). amount needed to do so was "excessive" under the Eighth Amendment. 37 Bail developed to mirror the trial outcome in the early English system but it is worth considering whether monetary payment is the best way to accomplish the goals of the pretrial system when a guilty defendant's trial outcome is a jail or prison sentence. 38 Subsequent reform movements in the twentieth century reflect the difficulties of a pretrial system tied to wealth, whether the movements are concerned with the inequitable administration of bail or with public safety concerns.
Concerns about inequitable bail practices motivated the bail reform movement in the mid-twentieth century. In the 1950s, Caleb Foote studied the administration of bail in New York and Philadelphia and concluded that bail amounts were tied to the severity of the offense rather than ability to pay, leading to many defendants being unable to post bond. 39 Beginning in 1961, the Vera Foundation and the New York University Law School studied alternatives to money bail bonds under the Manhattan Bail Project. Data from the Manhattan Bail Project indicated that money bail was not necessary to assure a defendant's return to court. 40 Based on these findings, Congress passed the Bail Reform Act of 1966, which codified a presumption of pretrial release, introduced non-monetary conditions as an alternative to money bonds, and included "community ties" as a consideration for setting pretrial release conditions. 41 37 Id.
38 Law Professor June Carbone notes, "The Anglo-Saxon bail process was perhaps the last entirely rational application of bail." Carbone, supra note 34, at 520 (quoted by SCHNACKE, JONES & BROOKER, supra note 32, at 2). In New York, the median amount of bail varies significantly across the state. In New York City, bail was $1,000 or less for most misdemeanor cases in which bail was set. In Buffalo, the median bail amount set was $5,000. RAHMAN, supra note 19, at 6 (first citing RUSSELL F. 40 Vera staffers developed a point system for measuring community ties to measure the likelihood of a defendant returning to court. The study showed that only 1.6% of defendants released without bond willfully failed to appear in court, compared to 3% of those released on bail. Id. at 553. 41 Id.
By the 1970s, the public grew increasingly concerned about public safety and crime, including crime committed by people out on bail. 42 In 1984, Congress passed the Bail Reform Act of 1984, which introduced a consideration of public safety in the federal system and allowed for the denial of bail based on a consideration of future dangerousness. 43 Though the Supreme Court had emphasized the "traditional right to freedom before conviction" in Stack v. Boyle, 44 the Court upheld the 1984 Act's preventative detention provision in United States v. Salerno against Due Process and Eighth Amendment challenges. 45 The Court explained, "We believe that when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does not require release on bail." 46 Although the 1984 Act applied only to the federal bail system, the Court's holding in Salerno established the constitutionality of public safety considerations when setting bail and preventative pretrial detention. Some jurisdictions have relied on those tools to address domestic violence concerns in the bail context. 47

B. The State of Bail Today
The bail reforms of the twentieth century authorized judges to release defendants on their own recognizance and impose non-financial conditions of release. The reforms also sanctioned legislation introducing public safety considerations in the pretrial release decision. Nevertheless, many jurisdictions failed to fully embrace these measures and continued to rely primarily on money bail as a release condition and use unaffordable bail 42 SCHNACKE, JONES & BOOKER, supra note 32, at 17. 43 Id. at 18. The 1984 Act required "pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court . . . unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or community." Bail Reform Act of 1984, 18 U.S.C. § 3142(b).   for de facto detention. 48 Thus, despite the bedrock principle of the presumption of innocence, 49 defendants may be jailed before a finding of guilt due to bail practices. 50 Besides offending notions of justice, pretrial detention imposes tangible costs on defendants. Defendants detained before trial may be induced to accept plea deals, even if they are innocent, because to do otherwise may mean spending months in jail before trial 51 Resulting criminal records subsequently impact employment, housing, and education. 52 The Supreme Court has said that "pretrial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationships." 53 Moreover, the negative effects of pretrial detention are not merely theoretical. Empirical studies show that pretrial detention affects case outcomes and the likelihood of recidivism. A study of misdemeanor cases in Harris County, Texas, found that defendants detained before trial are 25% more likely to be convicted and 43% more likely to be sentenced to jail than similarly situated defendants who were released before trial. 54 The same study also showed that detained defendants had longer sentences and were more likely to commit future crimes compared to similarly situated released defendants. 55 A study using data from Philadelphia court records found that defendants detained pretrial   (2017) (reasoning that pretrial detention for misdemeanor charges is particularly likely to induce guilty pleas because prosecutors often offer sentences for "time served" or probation for pleading guilty, leading to immediate release upon a guilty plea). 52 See ACLU N.J., supra note 51. 53 Gerstein v. Pugh, 420 U.S. 103, 114 (1975). 54 See Heaton et al., supra note 51, at 717. 55 See id. at 717-18. are 13% more likely to be convicted, have sentences that are 42% longer, and owe 41% more in non-bail court fees. 56 Studies show that bail practices disproportionately affect Black and Hispanic defendants 57 and lower income people. 58 This section addresses the current bail reform movement and New Jersey's reform as representative of the current movement.

The Risk-Based Approach
This generation of bail reform 59 has been characterized as a campaign to shift wealthbased pretrial systems-the traditional bail regime-to risk-based systems. 60 In a wealthbail system, defendants who may be "low risk" may be incarcerated before trial because they cannot afford the bond payment while "high risk" defendants who can afford bail are released on bond. 61 The model risk-based system avoids tying a defendant's release to his or her financial resources. Instead, the court would make a release decision and set nonfinancial release conditions based on an assessment of the defendant's risk and likelihood  of returning to court. 62 Jurisdictions across the country are increasingly incorporating risk assessments into their pretrial system. 63 The risk-based approach lends itself particularly well to domestic violence considerations because it acknowledges public safety as a valid consideration for pretrial release decisions and accepts the premise of pretrial detention for certain classes of defendants. 64 There are, however, risks of racial bias in administering a risk-based system. Judicial determinations of risk are subject to judges' cognitive biases. 65 To combat this bias, jurisdictions have incorporated risk assessments as an objective scientific approach to assessing risk. Risk assessments are actuarial tools that use input factors to predict the likelihood of a certain outcome, usually re-arrest. 66   explicitly racial, the inputs may be correlated with race. 67 Nevertheless, risk assessments predict recidivism in defendants with increasing accuracy and sophistication. 68

The New Jersey Model
New Jersey's criminal justice reform, which went into effect in January 2017, is one of the most prominent examples of successful statewide implementation of the risk-based approach. The legislation incorporates some provisions addressing domestic violence; an Attorney General Directive lays out a pretrial framework directly addressing domestic violence advocates' critiques. This section lays out the New Jersey bail reform measures and how New Jersey addresses considerations of domestic violence in the pretrial context.

a. New Jersey Bail Reform Generally
On January 1, 2017, New Jersey overhauled the state's pretrial system, 69 moving away from money bail to a risk-based system, in which courts consult a risk assessment tool to make release decisions. In March 2013, researchers found that defendants held pretrial accounted for three-quarters of the jail population in New Jersey. 70 Just over 5,000 inmates, or nearly 40% of the total jail population, could not afford to post bail for their release. 71 In response to these findings, the Chief Justice of New Jersey's Supreme Court, Stuart Rabner, appointed the Joint Committee on Criminal Justice, which included prosecutors, public defenders, the attorney general, judges, and state government representatives. The committee released a report containing recommendations that led to 67  Implementing a risk-based approach required a constitutional amendment to authorize pretrial detention. 73 In November 2014, New Jersey voters approved a state constitutional amendment that removed language granting a right to bail in criminal cases. The new amendment authorized courts to order pretrial detention without bail for high-risk defendants. 74 The courts make risk determinations according to the procedures set out in the 2017 criminal justice reform legislation.
Under the new statute, the Administrative Director of the Courts must approve the risk assessment instrument, which must be "objective, standardized, and developed based on analysis of empirical data and risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release." 75 New Jersey courts currently use a public-safety assessment tool (PSA) designed by the Laura and John Arnold Foundation (now Arnold Ventures), 76 a philanthropy focused on four issue areas-criminal justice, education, health, and public finance-and guided by evidence-based policy, research, and advocacy. 77 The PSA uses nine risk factors to evaluate the risk of the defendant's failure to appear, the risk of new criminal activity, and the risk of new violent criminal activity. 78 The risk factors include measures of the defendant's age, the nature of the arrest, the nature of prior arrests, and past failures to appear pretrial, among other measures. 79 The new system incorporates the risk assessment tool at multiple points in the arrest process. First, at the time of arrest, an officer will generate a preliminary PSA report to determine whether to issue a complaint-summons or a complaint-warrant. 80 The officer will decide to seek a complaint-warrant based on the charge, the preliminary PSA score, and the attorney general guidelines. 81 The court releases those issued a complaintsummons with instructions to return to court at a later date. 82 The court transfers those issued a complaint-warrant to county jail to await a release decision by a judge. 83 The initial decision to issue a summons or warrant means the difference between immediate release and detention in jail until the court makes a release decision. 84 If the officer issues a defendant a warrant, pretrial services staff members will prepare a recommendation on conditions of release in accordance with the decisionmaking framework developed by the courts. 85 Pretrial services staff members complete another PSA, which may include information missing from the preliminary PSA, and apply the decision-making framework to make a recommendation based on the PSA  The court then considers the risk assessment results, the Pretrial Services Program's recommendations, and any other information provided by a prosecutor or the defendant to make a release decision. 88 The court will either release the defendant on personal recognizance, an unsecured appearance bond, or release with the least restrictive nonmonetary conditions that will reasonably assure the following: (1) the defendant appears in court, (2) the community is safe, and (3) the defendant will not obstruct or attempt to obstruct the criminal justice process. 89 If the court does not find that any of these conditions will assure the defendant's appearance in court, the court may order release on monetary bail, but only to address flight risk. 90 If the prosecutor files a pretrial detention motion, the court may also detain the defendant in jail pending a pretrial detention hearing. 91 The court must make a pretrial release decision less than forty-eight hours after defendant's arrest, unless the prosecutor files a pretrial detention motion, in which case the court must schedule a pretrial detention hearing within three business days. 92 A court may order pretrial detention for a defendant after a hearing if the court finds by clear and convincing evidence that no condition of release would reasonably assure the defendant's appearance in court, the safety of any member of the community, and that the defendant will not obstruct the criminal justice process. 93 Except for certain violent crimes or any crime for which the defendant would be subject to life imprisonment, there is a rebuttable presumption against ordering pretrial detention. 94 The statute grants 86 Id. 87 Id.   There is no rebuttable presumption for charges of first or second degree of the following: murder, aggravated manslaughter or manslaughter, vehicular homicide, aggravated assault, defendants the right to counsel for pretrial detention hearings. 95 A defendant may appeal an order of pretrial detention and the appeal must be heard quickly. 96

b. New Jersey Bail Reform and Domestic Violence
There are a few provisions in the New Jersey bail statute that address domestic violence cases explicitly. A prosecutor may file a pretrial detention motion for any crime or offense involving domestic violence as defined in the New Jersey Code of Criminal Justice. 97 If the prosecutor files a pretrial detention motion, a court may order pretrial detention for any crime involving domestic violence after a hearing and based on clear and convincing evidence that no other conditions will assure the defendant's return to court, public safety, and that the defendant will not obstruct the criminal justice process. 98 Restrictions on cash bail also remain for those charged with domestic violence crimes, 99 but these restrictions are likely immaterial, as money bail is rarely used as an initial release condition post-reform. 100 disarming a law enforcement officer, kidnapping, aggravated sexual assault, sexual assault, robbery, carjacking, aggravated arson, burglary, extortion, booby traps in manufacturing or distribution facilities, strict liability for drug induced deaths, terrorism, producing or possessing chemical weapons, biological agents or nuclear or radiological devices, racketeering firearms trafficking, or causing or permitting a child to engage in a prohibited sexual act for an exhibition or performance.  100 ANDERSON ET AL., supra note 81, at 4 ("The analysis found only three instances where bail was set as an initial release condition in 2017. Since CJR was implemented, bail is more commonly used for responding to violations or failures to appear for scheduled court events.").
Following the criminal justice reform, domestic violence advocates expressed concern that the new law did not adequately protect domestic violence victims. 101 In response, the Attorney General released a directive in September 2017 placing an explicit emphasis on public safety and victims' rights. 102 The Attorney General Directives establish non-binding guidelines for law enforcement and prosecutorial discretion. 103 The 2017 AG Directive instructs law enforcement officers to generate a preliminary PSA for domestic violence offenses where the victim has been physically injured, a warrant is in effect, the person has violated a protective order, or a weapon is involved. 104 The directive instructs officers to seek a complaint-warrant for domestic violence offenses where a protective order appears reasonably necessary to protect the victim. 105 The directive also commands police officers to complete the Ontario Domestic Assault Risk Assessment (ODARA) for certain domestic violence cases in addition to the preliminary PSA. 106 ODARA contains thirteen domestic violence-specific risk factors, including the victim's concern for future assault, whether there are children in the relationship, and whether the victim is pregnant. 107 The directive establishes a presumption that the officer will seek an arrest warrant in cases where the ODARA score is three or higher and a presumption that the prosecutor will seek pretrial detention in cases where the ODARA score is five or higher. 108 Although the directive clearly states that police officers are to use the ODARA when making decisions to seek complaint-warrants, the judiciary has advised that it will not use the ODARA tool without legislative authorization. 109 The legislature has not codified the use of a second risk assessment tool geared toward domestic violence and so judicial officers currently do not consider ODARA scores. Even so, by transitioning to a risk-based model, New Jersey is able to implement bail reform and consider the context of domestic violence crimes when ordering pretrial release conditions or detention.

C. The New York Approach
Unlike New Jersey and many of the reforming jurisdictions, New York did not reform its bail framework into a risk-based system. New York State passed bail reform measures in April 2019, eliminating cash bail for most misdemeanors and non-violent felonies. On January 1, 2020, those measures went into effect. Due to backlash primarily concerned with public safety, New York quickly amended the law, expanding the list of bail-eligible offenses. In July 2020, amendments to the bail statute went into effect. In the original reform bill and in the subsequent amendment, New York preserved flight as the only consideration for pretrial release decisions. This section discusses both stages of New York's bail reform.

2019 Criminal Justice Reform
In April 2019, New York passed bail reform legislation, two years after New Jersey enacted its Bail Reform and Speedy Trial Act. 110 Criminal justice insiders, however, noticed the inequities of bail administration in New York years before the most recent legislative reform. The New York City Criminal Justice Agency, Inc. (CJA), whose mission is to reduce unnecessary pretrial detention, conducted a research project over ten years beginning in 2002 to research the bail system in New York City. , https://www.prisonpolicy.org/scans/DecadeBailResearch12.pdf. CJA found that there were a "large number of defendants held in jail while awaiting disposition of their cases, in spite of high ROR rates. More than 50,000 defendants are detained annually in New York City only because they lack the money to make bail. Many of them are recommended for release by CJA because of a low risk of failure to appear, and many are not facing jail terms." N.J. Att'y Gen. Memorandum, supra note 102. effect unaffordable bail had on their clients' cases. 112 The 2014 profile on Bronx teenager Kalief Browder 113 in the New Yorker finally brought the issues of bail in New York to the general public. 114 Browder had been arrested at age sixteen for allegedly stealing a backpack. Unable to pay the $3,000 bail amount, Browder spent three years in Rikers Island Jail pretrial before his case was dismissed. 115 Much of that time was spent in solitary confinement. 116 In 2015, Browder took his own life after struggling to adjust to life after Rikers. 117 While the bail system had been a fact of life for many New Yorkers exposed to the criminal justice system, the publicity surrounding Kalief Browder pushed the inequities of bail administration to the public consciousness.
Public support for bail reform encouraged New York legislators to take steps toward legislative change. Governor Andrew Cuomo announced a set of reforms in January 2018 in his State of the State address, avowing that "Kalief Browder did not die in vain." 118 Despite support for bail reform in the New York State Assembly, the Republican-led New York State Senate prevented the state from moving forward with reform. 119 When a Democratic majority was voted into the New York State Senate in November 2018, bail reform became a realistic legislative goal. 120 On April 1, 2019, New York State passed its fiscal year 2020 budget, which included significant legislation on bail reform. The legislation went into effect on January 1, 2020. 121 Though the reform did not entirely eliminate cash bail, 122 the new law had the potential to have a transformative impact on mass incarceration in New York. The Vera Institute of Justice conservatively estimated that there would be at least a 40% reduction in New York's pretrial jail population if the legislation is implemented effectively. 123 In comparison, there was a 30.4% reduction in New Jersey's pretrial jail population as measured two years after New Jersey bail reform went into effect. 124 Governor Cuomo's office anticipated that in approximately 90% of cases in New York after the legislation takes effect, persons charged but not yet convicted will remain out of jail before their trials. 125 The legislation abolished cash bail and pretrial detention in most cases by eliminating cash bail and pretrial detention for almost all misdemeanors and non-violent felonies. 126 The legislation preserved money bail in almost all violent felony cases. 127 In lieu of setting bail, courts would release defendants on their own recognizance or subject to nonmonetary release conditions or electronic monitoring. 128 Non-monetary conditions must be reasonable under the circumstances and may include supervision by a pretrial services agency, restrictions on travel, and orders to refrain from possessing a firearm. 129 Under 121 REMPEL & RODRIGUEZ, BAIL REFORM IN NEW YORK, supra note 20, at 1. 122 RAHMAN, supra note 19, at 4 ("To many interested in bail and pretrial justice, New York's reform seemed un-newsworthy as it didn't go as far as originally promised to eliminate money bail entirely.").  the legislation, the court must order "the least restrictive conditions that will reasonably assure the principal's return to court." 130 Additionally, the bill preserves the court's ability to issue a temporary order of protection for domestic violence crimes. 131 While some domestic violence advocates expressed concerns about victims' safety if New York ended its cash bail regime, 132 the legislation did include some carveouts for some domestic violence cases and sex crimes. The legislation permitted judges to set bail for (1)   that year. 138 4,550 of those cases involved an allegation of domestic violence. 139 2,316 violent felony cases involving domestic violence would have also qualified for money bail in New York City in 2018. 140 Nevertheless, judges could not set money bail for a number of domestic violence misdemeanors and non-violent felonies after the reform went into effect. Misdemeanors of assault, aggravated harassment, menacing, stalking, and more against an intimate partner do not qualify for money bail without the presence of another qualifying offense (e.g., violation of a protective order). 141 A judge could, however, order electronic monitoring for a misdemeanor crime of domestic violence, among other qualifying offenses. 142 The criminal justice reform introduced electronic monitoring as a non-monetary release condition. 143 The law specified that notice, an opportunity to be heard, and an individualized determination explained on the record or in writing are required before the court may order electronic monitoring. 144 The court may order electronic monitoring only after determining that no other non-monetary conditions will reasonably assure the defendant's return to court. 145 Importantly, although the exceptions permitted bail and electronic monitoring for certain domestic violence cases, the statute contained a presumption of release on recognizance (ROR) for all crimes, including those eligible for bail. 146 To overcome the  143 Id. § 500.10(3-a)(j). 144 Id. § 510.40(4)(a) (amended July 2, 2020). 145 Id. 146 Id. § 510.10(1) (amended July 2, 2020). presumption of ROR, the judge must make an individual determination that the defendant poses a flight risk. 147 If the judge does find that the defendant poses a risk of flight, the court must order the least restrictive alternative and conditions that will reasonably assure the defendant's return to court. 148 When making this determination, the judge must consider the defendant's activities and history, current charges faced, criminal conviction record, juvenile delinquency record or youthful offender status, and previous record of flight to avoid criminal prosecution. 149 For offenses that qualify for money bail, the judge must consider financial circumstances and ability to post bail. 150 When a defendant is charged with domestic violence, the court must consider order of protection violations and the defendant's history of use or possession of a firearm. 151

2020 Rollbacks
In April 2020, mere months after New York's criminal justice reform went into effect, the state legislature amended the law following criticism by opponents of reform. 152 After the laws went into effect, critics cited public safety concerns to roll back the reforms, pointing to anti-Semitic incidents 153 and NYPD claims that the crime rate was increasing. 154 In July 2020, the amended bail statutes went into effect. The current law made more crimes bail-eligible, introduced new non-monetary conditions for release, 147 Id. 148 Id. 149 Id. § § 510.30(1)(a)-(e) (amended July 2, 2020). 150 Id. § 510.30(1)(f) (amended July 2, 2020). 151 Id. § 510.30(1)(g) (amended July 2, 2020). The 2019 reforms made non-monetary conditions available for judges to impose pretrial in lieu of money bail. These included electronic monitoring, supervision by a pretrial services agency, and prohibition against possessing a firearm. 161 The 2020 amendments make additional non-monetary conditions available for judges to impose, including some conditions directed toward domestic violence offenders. Judges may refer defendants to pretrial services programs for placement in mandatory intimate partner violence intervention programs. 162 Although the defendant shall not be required to pay for the cost of any conditions of release, 163 there is no specific funding for these services. 164 Judges may also order defendants to obey conditions addressing the victim's safety, including conditions requested by or on behalf of the victim, for a domestic violence offense. 165 The statute does not specify possible conditions that may address a victim's safety.
Analysis by the Center for Court Innovation suggests that the amended law will result in a 16% increase in the use of money bail and pretrial detention in New York City criminal cases and 16% increase in the pretrial bail population, as compared to the reforms passed in 2019. 166 Even so, the new amended law is expected to significantly curtail pretrial detention as compared to the law before criminal justice reform. 167

II. New York Bail Reform May Pose Risks for Victims
Bail reform is important to rectify inequities in the pretrial system. 168 Nevertheless, the unique nature of domestic violence crimes may weigh in favor of incorporating specific domestic violence considerations in state bail laws. Part II begins by addressing the harms wrought by domestic violence and the historical background of domestic violence law in New York. It then discusses how the current bail laws may exacerbate the specific harms and risks of domestic violence cases.

Domestic Violence Is a Widespread Public Health Issue
Intimate partner violence, known more commonly as "domestic violence," is pervasive in the United States. According to the 2015 National Intimate Partner and 163 Id. § 500.10(3-a).  Sexual Violence Survey, 169 about one in four women and one in ten men experience contact sexual violence, 170 physical violence, and/or stalking by an intimate partner and reported at least one measure of intimate partner violence-related impact 171 during their lifetime. Domestic violence is now recognized as a public health issue and widespread societal problem. 172 Domestic violence causes physical injury, psychological trauma, and even death, and the consequences of intimate partner violence can last long after the abuse ends. 173 Women who are abused are more likely to experience depression, abuse drugs and alcohol, and attempt suicide than those who are not abused. 174 One study by the Centers for Disease Control and Prevention (CDC) estimated that the costs of intimate partner rape, physical assault, and stalking exceeded $5.8 billion per year, $4.1 billion of which were for medical and mental health services. 175 In New York State, in counties outside of New York City, 29% of all assaults were committed by intimate partners. 176 In 79% of those assaults, women were the victim. 170 Id. at 7 (stating that contact sexual violence is a NISVS measure that "includes rape, being made to penetrate someone else, sexual coercion, and unwanted sexual contact") 171 Id. (explaining that intimate partner violence-related impact includes: "being fearful, concerned for safety, injury, need for medical care, needed help from law enforcement, missed at least one day of work, [and] missed at least one day of school"). The lifetime estimate also included "any post-traumatic stress disorder symptoms, need for housing services, need for victim advocate services, need for legal services and contacting a crisis hotline." For those who were raped or made to penetrate someone else, IPV impacts also include a lifetime estimate of STI infection or pregnancy. Id. 2018 in New York State, 44% of female homicide victims who were sixteen years or older were killed by an intimate partner. 178 During that time, 2% of male homicide victims over the age of sixteen were killed by an intimate partner. 179 Though New York has been a leader in the efforts to fight domestic violence, 180 many New Yorkers are still impacted by violence today.

The Unique Characteristics of Domestic Violence Crimes
A domestic violence crime is distinct from a stranger crime because of the close relationship between perpetrator and victim. Domestic violence is a systematic pattern of power and control exerted against a single person who is repeatedly targeted. 181 A perpetrator of domestic violence often knows identifying information about the victim and her friends and family, including where they live and work. Perpetrators and victims may even share a residence. These facts suggest that perpetrators of domestic violence have an opportunity to reoffend.
Domestic violence also presents unique temporal risks. Domestic violence organizations identify the moment of separation or threat of separation as the most dangerous time for a victim in an abusive relationship. 182 Studies have found an increased risk of domestic violence homicide following actual separation or threat of separation. 183 In an eleven-city study seeking to identify risk factors for femicide in abusive relationships, Jacquelyn Campbell et al. found that "[w]omen who separated from their abusive partners after cohabitation experienced increased risk of femicide, particularly when the abuser was highly controlling." 184 Professor Megan Mahoney famously coined the term "separation assault" to refer to the potentially lethal violence occurring upon separation or attempted separation, explaining the difficulty victims may have extricating themselves from abusive relationships. 185 Professor Mahoney defines separation assault as "the attack on the woman's body and volition in which her partner seeks to prevent her from leaving, retaliate for the separation, or force her to return." 186 One way courts attempt to combat the increased risk and prevent violence is by issuing orders of protection. Some studies have shown that civil orders of protection can be effective means of deterring repeat incidents of domestic violence. 187 Nevertheless, a court order may not stop a particularly determined offender. 188 Studies show protective orders lower the risk of violence, but some risk necessarily remains. 189 One U.S. Department of Justice report advised, "Victims should be encouraged to take out protective orders and retain them but should also be advised that the orders do not deter all abusers and may be more effective when accompanied by criminal prosecution of the bringing cases against men who assaulted their wives to protect familial privacy and promote "domestic harmony. " 198 Domestic violence crimes were similarly dismissed in New York. Police attitudes toward domestic violence were not challenged in New York until 1977, when twelve "battered wives" sued the New York City Police Department and Family Court for the systemic failures to arrest husbands for domestic violence. 199 The plaintiffs alleged that police officers, when called to a husband's assault on his wife and confronted with undeniable physical evidence, would consistently refuse to arrest the husband and would inform the wife that her only remedy was to obtain a Family Court order of protection. 200 One plaintiff asserted in the complaint that the police came to the scene after her husband "grabbed me by the throat and beat me" and "brandished a straight razor and threatened me with it (and) tore my blouse off my body and gouged my face, neck, shoulders and hands with his nails, in full public view," and that the police informed her "that since this was a 'family matter' there was nothing they could do and that I would have to go to Family Court." 201 The parties settled after the police agreed to a consent decree to treat domestic violence claims like any other crime. 202 Nevertheless, the police continued to exercise their discretion to decline to arrest abusers. 203 It was not until 1994, when New York passed the Family Protection and Domestic Violence Intervention Act of 1994 (DVIA) and the federal government passed the Violence Against Women Act (VAWA), that attitudes toward domestic violence began to meaningfully change. DVIA reduced police discretion by enacting a mandatory arrest policy for felony and criminal contempt cases. 204 Police behavior began to change in response, leading to more arrests and prosecutions of abusers and less recidivism. 205 These changes in the criminal justice response to allegations of domestic violence continue to the present day. 206

B. Risks in the Bail Context
While domestic violence imposes public health and criminal justice costs on society generally, these offenses implicate unique considerations in the pretrial period. In the bail context, there are two main concerns: (1) that the pretrial period is more dangerous for victims under the new bail laws and (2) that the structure of the reform bill signals to victims that domestic violence is not taken seriously as truly criminal. The next sections will explore these issues in more depth.

The Pretrial Period May Be More Dangerous for Victims Under the New Bail Laws
Advocates seeking to end domestic violence have criticized the new bail laws for failing to protect victims during a particularly risky time in the cycle of violence. Leading advocates against domestic violence Judy Harris Kluger and Ariel Zwang acknowledge that "we do not need a cash bail system to ensure someone's return to court." 207 However, they push for a consideration of victims' safety pretrial. "Over and over again, when we speak with our clients, they tell us they want the court to consider the harm that might come to them and other victims if a defendant is released pretrial." 208 The pretrial period may be risky if it is accompanied by the victim ending the relationship or the perception that the victim is leaving the relationship. If so, the victim may be subject to separation assault-the increased risk of violence in an abusive relationship prompted by the threat of or actual separation. If under the new bail regime, domestic violence defendants are released pretrial who would otherwise be detained on unaffordable bail, those defendants are able to return to the victim relatively soon after the separation. There is a risk that by making it easier for perpetrators of domestic violence to return to their victims, the New York bail reform puts victims in danger at a 205 Id. 206 Id. 207 Kluger & Zwang, supra note 22. 208 Id. time when they are at an increased risk of being harmed and where the current judicial remedies may be ineffective.
The period of time immediately following arrest may pose heightened risks of violence, but it also affords an opportunity for service providers to intervene in the cycle of abuse. Time spent away from the offender allows the victim to connect with service providers, including shelters, and implement a safety plan.

Domestic Violence Crimes Are "Real" Crimes
Advocates against domestic violence also express concern that the structure of the bail reform laws signal to domestic violence victims that their complaints will not be taken seriously by law enforcement or courts. Leah Feldman of Family Services worries that "[v]ictims who experience a lack of protection by the system will be less likely to reach out for help in the future." 209 This concern is specific to domestic violence crimes, due in part to the past reluctance of criminal justice system to intervene in domestic disputes.
Advocates against domestic violence look at the new bail reform laws today against the historical backdrop of law enforcement failing to take domestic violence claims seriously. The 2020 rollbacks reflect these concerns. Even so, though there are carveouts in the law for some domestic violence crimes, most will be lumped under the umbrella of misdemeanors, crimes that are seen as less "serious" in the statutory scheme. Under the New York reform, cash bail is eliminated for most misdemeanors and non-violent felonies, subject to some exceptions including crimes involving witness tampering, sex offenses, criminal contempt, and domestic violence strangulation. 210 The exceptions will capture some domestic violence cases, but many cases will not be subject to the exceptions. Misdemeanor assault, aggravated harassment, menacing, and stalking against an intimate partner will not qualify for money bail without the presence of another qualifying offense (e.g., violation of a protective order). 211 Domestic violence crimes are overwhelmingly charged as misdemeanors, but they are not necessarily lesser offenses. Particularly because domestic violence manifests in a pattern of power and control that escalates over time, 212 it is important for victims to seek help or for the system to intervene before the violence becomes more serious or deadly. Grouping domestic violence charges with crimes like petty theft risks communicating to victims that their claims will not be taken seriously. This may lead to victims declining to report crimes if they believe that such reports will be ineffective or even expose them to further harm.

III. Possible Mitigating Measures
This Part presents two potential solutions to address domestic violence concerns within a bail reform framework. Part III.A discusses the risk-based model, or the New Jersey model. Part III.B discusses the incorporation of a mandatory cooldown period for defendants charged with domestic violence into the current New York bail regime. Both models address different concerns from relevant stakeholders, though neither model effectively addresses and solves all stakeholder critiques.

A. Implementing the Risk-Based Model in New York
One way to address the risks of the New York bail reform for domestic violence victims is to adopt a consideration of dangerousness within the pretrial framework. New York is the only state that does not allow courts to consider public safety when making release decisions. 213 Before the 1970s, all bail statutes permitted judges to only consider flight risk when setting bail conditions. 214 Following the era of "tough on crime" rhetoric, the 1984 Bail Reform Act, and the Supreme Court's ruling in Salerno, states began to allow judges to consider public safety when setting bail or imposing pretrial detention. 215 Many states also adopted preventative detention following the 1984 Act. 216 In 2012, the New York Criminal Justice Agency (CJA), after a decade of research on bail in New York City, recommended New York legislators consider amending New York bail laws to authorize preventative detention for dangerous defendants. 217 Such change would require a public safety consideration to be authorized in the bail laws as well.
There had been debate around adding a public safety provision into the statute in early 2019 before the final bill passed. 218 Governor Cuomo's original bail proposal included language permitting judges to consider public safety and impose preventative detention if a person "posed a current risk to the physical safety of a reasonably identifiable person or persons." 219 However, opponents of the provision, including criminal justice reform advocates and several members of the Assembly, pushed back, citing concerns that a public safety consideration would justify even more detention. 220 Ultimately, the provision did not make it into the 2020 bill and instead bail was preserved for most violent felonies.
The New Jersey statute could serve as a model for the addition of a public safety provision in New York's statute. Unlike New Jersey, New York would not have to approve a constitutional amendment authorizing pretrial detention. The bail clause in the New York Constitution mirrors the bail clause in the Eighth Amendment of the United States Constitution, which does not include a right to bail. 221 The New York legislature would have to pass new legislation though to amend the bail statutes. The legislation could abolish cash bail for all offenses, including violent felonies. Instead of assigning bail, the court would evaluate the accused based on a set of pre-defined risk factors. For domestic violence cases, the court could look at risk factors tailored to domestic violence risks, such as those used in the ODARA risk assessment in New Jersey. By abolishing cash bail for all offenses, including felonies, the bail laws would no longer signal that domestic violence cases are any less serious than other violent offenses. By implementing a risk-based framework, courts could tailor release conditions to the likelihood the perpetrator will reoffend. For truly extreme cases that score high on a lethality assessment, 222 the legislature could authorize pretrial detention.
If New York does amend its bail statute to allow for pretrial detention, the legislature should include certain provisions to protect the accused's constitutional rights. Any detention decision should be made after an adversarial hearing, in which the prosecutor must prove by clear and convincing evidence that the accused poses a current risk to the 218 RAHMAN, supra note 19, at 7. 219 Id. at 8. 220 Id. physical safety of a reasonably identifiable person or persons and that no other condition of release would reasonably assure the safety of such persons. As in New Jersey, there should be a rebuttable presumption of release and defendants should have the right to counsel for pretrial detention hearings. A defendant should have the ability to appeal an order of pretrial detention and the appeal must be heard quickly.
Some criminal justice players have pushed back against amending the law to consider dangerousness. In particular, public defender offices have taken strong stances against a consideration of public safety. After the bail reform was passed, the Bronx Defenders applauded the elimination of cash bail for most people charged with misdemeanors and non-violent felonies but noted, "While we welcome the criminal justice reform provisions in the budget, there is still much work to be done to make this comprehensive vision of criminal justice a reality. . . . [P]retrial detention is fundamentally at odds with the presumption of innocence, so we must continue to fight for comprehensive bail reform that ensures robust due process, eliminates wealth-and race-based detention for everyone, and stands firm against the introduction of dangerousness to our bail statute." 223 Tina Luongo of The Legal Aid Society, Justine Olderman of The Bronx Defenders, and Lisa Schreibersdorf of Brooklyn Defender Services wrote an op-ed in the New York Law Journal warning against a "dangerousness"-based preventative detention scheme. 224 They explained that "as public defenders, we worry that extending preventative detention to accused New Yorkers based on perceptions of 'dangerousness' would sanction further racial discrimination and bias. It could also mean an increase in the number of people in pretrial detention." 225 Moreover, the dangerousness debate risks placing domestic violence concerns and criminal justice reform directly at odds. Some organizations that serve victims of domestic violence are strongly in favor of bail reform. In April 2020, the New York City Anti-Violence Project (AVP), an organization that serves LGBTQ and HIV-affected survivors of intimate partner violence and hate violence, announced their opposition to the rollbacks on the grounds that cash bail harms marginalized survivors of violence. 226 Survived and Punished NY, a grassroots organization devoted to ending the criminalization of survivors of gender-based violence, criticized the 2019 bail reform legislation before rollbacks were announced for failing to fully eliminate money bail. 227

B. Incorporating a Cooldown Period into the Current New York Framework
In light of critiques of a dangerousness consideration in the pretrial framework, an alternate approach to the New Jersey framework is worth considering. New York could pursue bail reform as it has since 2019 by eliminating bail for certain offenses but incorporating provisions directed specifically at the concerns of domestic violence advocates. This Note proposes the incorporation of a cooldown period for persons accused of certain violent domestic violence crimes into the pretrial framework. A cooldown period could be mandated by statute or implemented according to judicial discretion.
Some states have already incorporated statutory provisions on holds for cooldown periods. In Tennessee, defendants arrested for certain domestic violence offenses, "shall not be released within twelve (12) hours of the time of arrest" if the magistrate or other official duly authorized to release the offender finds that the offender is a threat to the alleged victim. 228 In Mississippi, after setting bail, "the judge may impose on the arrested person a holding period not to exceed twenty-four (24) hours from the time of the initial appearance or setting of bail." 229 The judge shall consider the potential for future violence, past history of violence between the defendant and alleged victim, the level of violence of the current offense, any threats of future violence, and the existence of any order of protection when setting specific release conditions. 230 A "cooldown period" or temporary hold may signal to victims that their reports are taken seriously. If victims see real responses to their reports, they may be encouraged to seek help when they need it most. The moment of separation is a particularly dangerous time in the cycle of abuse, and a cooldown period creates a judicially imposed delay, stretching the period that the defendant and victim are separated. With time on which the victim can rely, the victim can implement a safety plan. The time also benefits domestic violence intervention programs to contact victims to intervene in the cycle of abuse.
A temporary hold may also serve the goals of bail reform. Currently, New York bail reform makes exceptions for certain domestic violence crimes, keeping those crimes as bailable offenses under the reform. 231 The domestic violence offenses that maintain their bail-eligible status, however, merely allow for the setting of bail in those cases, which may result in some defendants immediately posting bail while others remain in jail until case disposition. A temporary hold, on the other hand, is wealth-neutral. If a cooldown period were implemented, New York may be able to ensure the safety of victims without holding a defendant in indefinite pretrial detention, either due to a dangerousness finding, as in the New Jersey model, or due to inability to pay, as is the case for current bailable offenses in New York.
Although pretrial detention has been shown to detrimentally impact defendants, recent studies have shown negative effects occurring in cases where defendants are detained for periods greater than twenty-four hours. A study of misdemeanor defendants in Harris County found defendants more likely to plead guilty, be sentenced to jail, and receive longer sentences when detained for more than seven days. 232 A study of defendants in Philadelphia found pretrial detention of greater than three days led to an increased likelihood of conviction and longer sentences. 233 Moreover, some detention is typical in the normal course of post-arrest processing. In New Jersey, defendants may be detained for up to forty-eight hours before the court makes a pretrial release decision. 234 If the prosecutor files a pretrial detention motion, a defendant may be detained for up to three business days before a pretrial detention hearing. 235 In Harris County, Texas, Local Rule 9 allows for individuals to be detained for up to forty-eight hours for a bail hearing. 236 Even in New York, arrestees may be held in custody for up to twenty-four hours before arraignment, 237 which is when bail is set. 238 There are some tensions between domestic violence concerns and bail reform but a wealth-neutral provision that addresses the needs of domestic violence victims may create a fairer, safer, and more just system for all New Yorkers.

CONCLUSION
New York is currently grappling with the implementation of an equitable pretrial regime while balancing public safety concerns, as evidenced by the 2019 bail reform measures and subsequent 2020 amendments. The 2019 bail reform statute was a significant and progressive step forward for the criminal justice system and the administration of bail. Even with the 2020 amendments, the current bail regime has the potential to have a transformative impact on mass incarceration in New York State by releasing defendants before trial who would otherwise stay in jail merely due to their inability to afford bail. Nevertheless, victims of domestic violence may be vulnerable under the new statutory scheme. One proposal to address these risks is for New York to adopt the New Jersey model, which incorporates a risk-based framework for pretrial release and has begun to incorporate risk assessments tailored to domestic violence risk factors. It is worthwhile, however, to also explore other mitigating measures in light of New York's commitment to pretrial decisions based solely on flight risk. One such measure could be for New York to adopt a mandatory cooldown period for perpetrators of domestic violence. While New York has taken important steps toward a fair and just system for all, it must grapple with whether that system is truly safe for all.