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In a striking written decision issued last week, Bronx Criminal Court Judge Wanda Licitra ordered the release of a man who had been incarcerated on Rikers Island due to his inability to pay bail along with the violent and increasingly lethal conditions at the city’s main jail.
The man, who is referred to in the decision only by his last name, Ayala, had been sent to Rikers because he was accused of violating an order of protection. That enabled a prior judge to set cash bail, and Ayala didn’t have the $500 required to be released.
He was 56 years old, in “frail condition,” and had no criminal record, though he had been arrested several times and had multiple open cases for offenses including drunk driving and assault.
Licitra’s unusual written decision ordering the man’s release was based in large part on the requirement in New York’s sweeping 2019 bail reform law that judges take into account a defendant’s financial circumstances and their “ability to post bail without posing undue hardship.” Licitra, a former public defender, reasoned that the fact that Ayala was still at Rikers was evidence that the $500 bail constituted an “undue hardship.”
Licitra’s choice to publish a written opinion for a bail hearing, rather than issuing a verbal decision, was a break from usual practice that could prompt other judges and lawyers to reassess how the 2019 reforms should be implemented, say court observers.
“If every judge applied this kind of careful parsing and reasoning, and gave fair application to the statute’s terms, more people would be released from Rikers,” said Jonathan Oberman, a criminal law professor at Cardozo School of Law.
If other judges were to embrace Licitra’s logic, it would significantly change the way bail functions in New York. The vast majority of people in jail in New York state have not been convicted of a crime, but are awaiting trial and unable to post bail, like Ayala.
“I don’t think when they changed the bail statute that they wanted a 56-year-old guy with no record being held in jail on a criminal conduct misdemeanor,” said Mark Bederow, a defense attorney who formerly worked as a prosecutor at the Manhattan District Attorney’s office. “This is one of those cases that the advocates in favor of bail reform would check in their column as one where the D.A. was not being reasonable.”
The office of Bronx District Attorney Darcel Clark, which is prosecuting Ayala and opposed his release, did not respond to a request for comment. Nor did the New York Police Department or New York’s District Attorneys Association.
New York’s 2019 overhaul of bail law was meant to fix a justice system that was commonly perceived as treating rich and poor people differently, as low-income New Yorkers were forced to await trial from jail while those with means could buy their freedom.
Its approach contrasted with that of New Jersey, which eliminated cash bail entirely in 2017 but granted judges power to order certain defendants held behind bars before trial if they presented public safety risks. New York, which has never allowed judges to consider “dangerousness,” retained bail as a means to ensure people showed up at trial — but limited its use mostly to certain felonies in certain circumstances.
In an April 2019 statement praising the changes, state Senate Majority Leader Andrea Stewart Cousins said that the new laws would “ensure that no New Yorker is incarcerated because of their inability to pay.”
But that’s not how the law has functioned in practice. While it has dramatically reduced New York’s pretrial population by rendering most misdemeanors ineligible for bail, it did not cause the dollar amounts of cash bail to decrease, when judges do apply it.
Instead, judges have continued to set bail beyond many low-income defendants’ ability to pay. When the Vera Institute of Justice examined arraignments in five upstate counties, it found defendants’ ability to pay wasn’t even discussed in more than 70% of cases in which bail was set, said Jullian Harris-Calvin, director of the organization’s Greater Justice New York program.
In 2020, the first year that the bail reform law was in effect, only 39% of felony defendants who had bail set could pay within a week of being sent to jail — the same number as in 2019, the year before bail reform took effect, according to a report from the nonpartisan Center for Court Innovation. Fewer than half could pay within 90 days, a slight decline from 2019.
In some cases, defense lawyers have attempted to get their clients released by arguing that setting bail beyond a defendant’s ability to pay violates the “undue hardship” provision of the law. But those arguments hadn’t found much success until now; a public defender representing clients in the Bronx, who requested anonymity to prevent reprisals against their clients, said Licitra’s decision is the first time they can recall a judge applying that logic.
“If you and your family clearly are not able to meet the bail requirements in terms of the amount, that’s never really swayed the courts,” the public defender said.
For decades, judges in New York have only been allowed to set bail as a means of ensuring defendants return to court to face trial. New York is the only state that does not allow judges to take into account whether they believe that defendants are a public safety risk. Instead, judges are mandated to use the “least restrictive” means of ensuring that defendants return to court for their scheduled appearances.
Simply failing to show up to court is rare in New York. In 2020, fewer than one in ten defendants missed any of the court dates in their cases, according to a report from the nonprofit New York City Criminal Justice Agency, though that rate was slightly higher for people accused of felonies.
Ayala had previously missed court dates in separate cases, such as a case stemming from a drunk driving charge in February 2022, before he was sent to jail on September 9. Other judges might have used those missed appearances as evidence that bail was required to ensure he would return to court. But Licitra noted that he had appeared at multiple court dates after those missed appearances, which she took as evidence he wasn’t trying to escape the court.
“Not every instance in which a person misses their court date is evidence of ‘running away’ from the prosecution,” Licitra wrote. This perspective, while not ubiquitous, is shared by some other judges in New York courts, the public defender said.
‘A More Restrictive Kind of Control’
Licitra’s ruling also applied the 2019 reform laws to the violent conditions at Rikers Island to justify releasing Ayala. Leaning on the law’s mandate to use the “least restrictive” means to get someone to return to court, Licitra argued that “worse jail conditions are a more restrictive kind of control,” noting that a man had died at Rikers on the very day that she issued the ruling in Ayala’s case.
Licitra isn’t the first judge to order someone released before their trial because of the conditions on Rikers Island. In December 2021, Supreme Court Judge April Newbauer ordered the release of a man incarcerated at Rikers on a felony burglary charge, ruling that the level of violence at Rikers justified releasing him and allowing him to wear an electronic monitor while awaiting trial. (Newbauer’s decision was based on federal constitutional provisions prohibiting cruel and unusual punishment and establishing the right to due process, not the New York state law, which Licitra relied on.)
Whether the ruling will produce wider change is an open question. As a criminal court judge, Licitra only rules on misdemeanors and the initial stages of felony proceedings, and doesn’t have any jurisdiction over other criminal court judges or the higher-ranking Supreme Court judges who hear felonies. Other judges can simply choose to ignore her ruling.
But others may be influenced by Licitra’s reasoning, some defense attorneys hope. The Bronx public defender said they plan to use the decision to try to persuade other judges to take a “more head-on approach to the bail reform law.”
“Just having something that we can rely on and point to is very big,” they said. “She’s giving us the tools.”