Cyrus Vance Jr., New York district attorney

Manhattan District Attorney Cyrus Vance Jr. announced Tuesday that his prosecutors will no longer ask for bail in most misdemeanor and violations cases, joining a growing number of states and localities in reforming bail practices that critics say unfairly target the poor.

Vance’s policy shift came the same day as the New York Civil Liberties Union announced the filing of an extensive habeas corpus petition, under equal protection and due process principles, on behalf of a Dutchess County resident who has spent months in jail on a petit larceny charge because his $5,000 bail amounts to nearly half of his annual income.

According to both Vance’s office and the NYCLU, there is no relationship in the timing of Vance’s announcement and the civil rights suit, but the happenstance of each coming on the same day frames what has become a growing reform movement nationwide: The dismantling of certain longstanding bail practices so that the poor and destitute are not penalized more harshly than others, such as by spending more time behind bars than their wealthier counterparts. New Jersey, for instance, enacted a law last year that got rid of cash bail in most instances in favor of judges employing a risk-assessment evaluation system.

The NYCLU habeas petition challenges imposing a cash bail when a judge has not considered a person’s ability to pay or alternatives to money bail, the civil rights group said in a statement Tuesday. The NYCLU added that it hopes that a ruling in favor Dutchess County resident Christopher Kunkeli “could set standards for state courts that would lead to large reductions in the numbers of New Yorkers held before trial.”

Phil Desgranges, senior staff attorney at NYCLU, said in a statement: “Manhattan District Attorney Cy Vance’s new policy, as well as Gov. [Andrew] Cuomo’s plans in the legislature [to implement bail reform], are positive steps towards reducing mass incarceration by limiting the use of bail. However, as our lawsuit makes clear, judges can and should do more by considering ability to pay and alternatives to bail to ensure that the constitutional rights of New Yorkers are not violated.”

New York state’s bail statute allows judges to consider alternatives to “restrictive forms of bail,” including unsecured and partially-secured bond, as well as pretrial release services, which the group said are available in most counties and “have been successful at ensuring participants appear in court.”

It added that “the U.S. Supreme Court has held that imprisoning someone solely because of their poverty violates the Fourteenth Amendment’s guarantees of equal protection and due process.”

“Mr. Kunkeli is one of the thousands of New Yorkers each year who, though presumed innocent, remain behind bars because they don’t have means,” said Donna Lieberman, the NYCLU’s executive director. “Justice should not depend on the size of your bank account. The courts have a responsibility to consider defendants’ financial circumstances.”

Vance’s move, meanwhile, mimics a similar change instituted by Brooklyn District Attorney Eric Gonzalez in April, and in an announcement made jointly with Gonzalez on Tuesday, Vance noted that he’d consulted with Gonzalez when crafting his new guidelines.

“A systemic reliance on bail for low-level offenses is out of step with a reformed, 21st-century justice system. It is fundamentally unfair and does not make us safer, given the range of effective alternatives to pretrial detention now at our disposal,” Vance said.

“When non-violent New Yorkers are jailed as a function of their inability to pay, we perpetuate inequality and mass incarceration, and bring about unnecessary immigration, employment, and family consequences,” he added. ”In light of our record-low crime, our national imperative for justice reform, and our moral, generational obligation to close Rikers, it is clear that ending cash bail is an idea whose time has come.”

Under new misdemeanor bail guidelines that became effective Tuesday, Vance’s prosecutors will work from the presumption that no bail is to be requested in misdemeanor and violation cases.

But his prosecutors will continue to ask for bail in certain cases that involve violence, including domestic violence, sex crimes and ones involving injury against a police or peace officer, the announcement said.

In addition, Manhattan prosecutors may continue to request bail in cases where the defendant:

  • Has been convicted of a violent felony or other serious felony within the past 10 years.
  • Has been convicted of a sex crime.
  • Has a pending felony case or multiple pending misdemeanor cases.
  • Is on parole, probation, or supervised release.

Gonzalez stated in the joint news release that “as part of my commitment to making criminal justice fairer and more equitable in Brooklyn, I instructed our assistant district attorneys that our policy is to not ask for bail in most misdemeanor cases. Bail shouldn’t be requested when we don’t intend to seek jail time and must never be used as leverage to obtain a guilty plea.”

Referring to its habeas petition lawsuit brought in the Appellate Division, Second Department, on behalf of Kunkeli, the NYCLU said in its statement that “the judge in Mr. Kunkeli’s case set his $5,000 bail and $10,000 bond without considering Kunkeli’s ability to pay, and ordered him jailed in Dutchess County when he could not.”

Kunkeli was arrested in October last year and accused of shoplifting a vacuum cleaner from Target, and has been incarcerated since, according to the NYCLU.

“People who had not yet been to trial accounted for 71 percent of the [Dutchess] county’s jail population in 2016,” the NYCLU said, adding, “Between 2010 and 2017, 63 percent were there for misdemeanors or violations. They spent an average of 32 days behind bars for misdemeanor offenses and 16 days for mere violations, like disorderly conduct. Between 2010 and 2017, nearly 700 people were detained for one week or more on just $500 bail. Dutchess County’s bail practices have led to overcrowded jails, with defendants jailed in nearby trailers.”

The case is People of the State of New York, ex rel. Philip Desgranges, Esq. on behalf of Christopher Kunkeli v. Adrian Butch Anderson, Dutchess County Sheriff, App. Div. Docket No. 2018-346.