Billionaire convicted sex offender Jeffrey Epstein recently committed suicide in the Special Housing Unit (the “SHU”) at the Metropolitan Correctional Center, a federal pre-trial detention facility in Manhattan, while awaiting trial on sex trafficking charges. Judge Richard M. Berman had earlier denied Epstein’s request for release on a $100 million bail package that included house arrest, electronic monitoring and around the clock security provided at Epstein’s expense, instead finding that Epstein presented a risk of flight and still posed a danger to the community. Unless an appellate court had reversed Judge Berman, Epstein would have had to await resolution of his case from behind bars – just as any other defendant charged with a crime and denied bail would have to. The same would apply to any defendant who could not satisfy the bail conditions set when first arrested.

Given the logistical difficulties associated with preparing a defense to criminal charges from the “inside,” not to mention the aggravations and inconveniences of pre-trial detention, it is essential that you have an experienced defense lawyer by your side at the very outset of any criminal case to make sure you are either released without bail (that is, on your own recognizance) or with reasonable bail that you or your family can afford.

At Protass Law PLLC, we look to intervene on behalf of our clients as early as possible to help them avoid having to spend unnecessary time behind bars. Indeed, criminal cases are often won or lost in their opening stages, so you should talk to a lawyer as soon as possible after your arrest or as soon as you learn that you may be under investigation. For a free consultation, call us today at 212.455.0335.

Coming Reforms to New York State’s Bail System

The bail system is designed to accomplish two goals – ensure that those charged with crimes appear for all court dates in their cases (that is, to make sure they don’t take flight) and to protect against any threat they might pose to the community (or any specific individual). In New York, if a court sets bail at a specific dollar amount, a defendant must – to secure his/her release – either pay that amount or hire a bail bondsman to post a bond in that amount (typically paying the bail bondsman a non-refundable fee of 10% of the face value of the bond to be posted). Those monies are returned to whomever posted bail at the end of a case if a defendant shows up for all court appearances and can only be forfeited if a defendant doesn’t show up for all court appearances or violates any of the other term of release (such as a prohibition on committing new crimes while out on bail).
Such a system of “cash bail” tends to favor those with financial means because they are more easily able to post the money required to get out on bail. Because it is typically the poor who cannot afford bail, cash bail has historically greased the wheels of mass incarceration. People who cannot afford to “buy” their freedom often lose jobs, get evicted and have children taken from them.

Recognizing these systemic inequities, and responding to tragic press accounts (such as this one on CNN) about individuals charged with low level infractions who languish behind bars for months or even years because they can’t afford even $500 or $1,000 in bail, in April 2019 the New York legislature passed sweeping reforms to the state’s bail system, including a strict curtailment on the use of cash bail for most misdemeanor and non-violent felony offenses. Once the new law goes into effect on January 1, 2020, most people charged with misdemeanor and non-violent felonies will be automatically released, many directly from police precincts just hours after arrest rather than after full processing and an appearance before a judge (a process than can take up to 24 hours in New York City). Only those charged with violent felonies, sex offenses and violations of an Order of Protection (and those charged with offenses that might require a judge to issue an Order of Protection) will be subject to the potential of bail. And, even in those cases, judges will still be required to consider whether the setting of cash bail will impose an undue financial burden. Under the new law, courts also will be able to use other means (such as electronic monitoring, at the state’s expense) to ensure that defendants who might present a risk of flight actually appear for court.

The Cash Bail System Remains in Place in the Federal System

Bail in the federal system is controlled by statute. Specifically, 18 U.S.C. § 3142 provides that federal judges are required to release defendants on their own recognizance or upon the execution of an unsecured appearance bond in an amount set by the court. If, however, a judge finds that unsecured release is not sufficient to “reasonably assure the appearance of the person as required” or “will endanger the safety of any other person or the community,” release is still required, albeit “subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the defendant as required and the safety of any other person and the community,” which conditions can include a secured appearance bond, house arrest, electronic monitoring or any number of other means for satisfaction of the dual purposes of bail. But if no condition or combination of conditions can be set that will both protect the public and assure against flight, federal judges are required to deny bail. Also, significantly, there are a number of federal offenses for which there is a legal presumption against bail, such as certain sex offenses and certain violent crimes. Under those circumstances, a lawyer must convince a judge otherwise – a process that can involve written legal submissions and even court hearings at which evidence is presented and testimony from, for example, family and friends of the accused is heard.

Simply put, the bail process in the federal system is vastly different than it is in the state system. And the dollar amounts for bail in the federal system tend to dwarf those in the state system. By way of example only, Protass Law PLLC recently represented an individual who has recently emigrated legally to the United States and who was charged in a $42 million healthcare fraud conspiracy. The judge presiding over that case set bail at $3,000,000. But, unlike New York, even such a high bail figure does not have to be satisfied by cash or a bail bond. Rather, the federal system allows for the release of defendants on bail upon the signature by “financially responsible persons” on appearance bonds promising that they will pay the bail amount if the defendant takes flight. Sometimes those bonds must be secured by assets, such as real estate. Other times no security is required.

Jeffrey Epstein’s case is a cautionary tale as to bail in the federal system. Epstein faced charges for which 18 U.S.C. § 3142 provided for a presumption against bail. That is why he presented such an extraordinary bail package. Still, Judge Berman denied Epstein bail, explaining with respect to public safety that “Mr. Epstein’s alleged excessive attraction to sexual conduct with or in the presence of minor girls — which is said to include his soliciting and receiving massages from young girls and young women perhaps as many as four times a day — appears likely to be uncontrollable” and concluding with respect to flight risk that, notwithstanding the vast dollar amount and restrictive conditions offered, Epstein could still use his vast wealth, fleet of private aircraft and international residences to slip away and disappear.

An Experienced Criminal Defense Lawyer Can Help You Secure Release Pending Trial

No one wants to fight a criminal case from behind bars. Defending yourself against the full weight of the state or federal government’s huge resources is stressful enough, and you will want to spend as much time as possible in your home with the support of with your family and friends. Having a lawyer on your side is critical to securing your release while awaiting trial. And the sooner you seek help from an attorney, the better.

You can greatly improve your chances of avoiding detention if you turn yourself in as soon as you learn that law enforcement is looking for you because charges have been filed against you. Doing so demonstrates from the get-go that you’re not a flight risk and places you in a stronger position to secure bail after arrest. At Protass Law PLLC, we will stand by your side and advocate fiercely for your release and thereafter do everything in our power to prove your innocence. Call us today at 212.455.0335 for your free consultation with a New York criminal defense lawyer.