Changes in New York’s bail laws have been hailed by some nonprofit criminal justice organizations as a way to reduce inequities and mass incarceration. The changes will allow people who have been charged with certain crimes to stay out of jail while waiting for their trials without having to come up with money to post bail. But some in law enforcement are critical of the changes, which eliminate money bail for offenses that account for approximately 90 percent of arrests statewide.
The union that represents active and retired police officers in New York City made a claim about the new law, which takes effect Jan. 1. In a Twitter post, the New York City Police Benevolent Association said, "Defendants charged with producing, directing or promoting an obscene sexual performance by a child will be arraigned & set free."
As evidence for its claim, the police union included in its tweet a section of state law regarding child pornography. The union cited section 263.10 of the penal code, which states: "A person is guilty of promoting an obscene sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any obscene performance which includes sexual conduct by a child less than seventeen years of age. Promoting an obscene sexual performance by a child is a class D felony."
We’ve heard many claims about what the new law will do, and we wondered if the police union’s claim is accurate.
The new law has a list of "qualifying" offenses for which a judge can set bail. These qualifying offenses are serious crimes, and some involve child pornography. Judges are permitted to impose bail under the new law for these offenses: facilitating a sexual performance by a child with a controlled substance or alcohol, use of a child in a sexual performance, or luring a child for the purpose of committing a crime against him or her. On April 1, 2019, when the new law was passed, three people with these qualifying offenses were in jail awaiting trial in New York City, according to a report from the Center for Court Innovation, which advocates for alternatives to incarceration.
But not every child pornography charge described in the statute is a qualifying offense.
A person charged with the offense cited by the union -- "producing, directing or promoting an obscene sexual performance by a child" -- would have to be released and bail would not be imposed.
New York’s pretrial law - the current one and the one that takes effect Jan. 1 - does not allow judges to evaluate whether a person is dangerous to the community when deciding whether that person should be held before trial. Unlike in other states, judges can only consider whether a defendant is likely to return to court. In cases where a judge has doubts about whether the defendant is likely to return, the judge would have to "release the principal" and select a non-monetary option, such as pretrial supervision or travel restrictions, and choose the least restrictive option "that will reasonably assure the principal’s return to court," according to the law.
We spoke with legal experts, some who specialize in prosecution and others in criminal defense. Many agreed with the police union's tweet.
But several pointed to what they call a more realistic legal scenario.
Taryn Merkl, a former federal prosecutor who led a human trafficking task force in Brooklyn, said that it is hard for her to imagine a set of facts in which a prosecutor would charge only this crime and not something more serious that would require bail.
"This doesn’t strike me as the main charge one would bring," said Merkl, who is senior counsel in the Justice Program & Law Enforcement Leaders at the Brennan Center for Justice at New York University Law School. The Brennan Center is in favor of ending mass incarceration.
We looked at arrest records from New York City since 2006 to get a sense of how often police charge this specific crime. We found that in at least 135 arrests, approximately 10 per year, this charge was the top charge. Merkl noted that that the charges that prosecutors decide to bring in a complaint or indictment can be different from those charges that a police file during an arrest. In addition, charges other than the "top charge" for these defendants could require detention, even if the top charge does not, according to the Center for Court Innovation.
Rebecca Town, a criminal defense attorney at the Legal Aid Bureau of Buffalo, which assists low-income people, said the charge cited by the police union is "almost always" accompanied by a sex offense under Article 130 of the state penal code, which allows a judge to set cash bail.
"If the individual accused is directly responsible for creating such material, they will be charged with something that is directly a sex offense that would still trigger money bail," Town said.
The New York City Police Benevolent Association tweeted that under the state’s new bail reform law, "defendants charged with producing, directing or promoting an obscene sexual performance by a child will be arraigned & set free."
Defendants facing this charge will be released as they await trial. We know from New York City arrest data that there are cases where this is the top charge at the time of arrest. In cases where the judge deems a defendant to be a flight risk, some pretrial supervision outside of a jail can be imposed. If a defendant is charged with this and certain other, more serious child pornography charges, bail may be imposed.
We rate this claim Mostly True.