jail-cells

A Dutchess County Supreme Court justice has ruled that setting cash bail on a defendant, without considering his or her ability to make such a payment, violates the constitutional rights of due process and equal protection.

The ruling by Justice Maria Rosa is believed to be the first of its kind in New York State. And according to the New York Civil Liberties Union, which brought the declaratory action on behalf of a county man held for months while he couldn’t afford to pay his bail, the decision may be used as a key precedent in pushing the courts to end certain cash bail practices in New York.

“We intend to use this ruling to pursue statewide reform to end the practice of jailing thousands across the state solely because of their inability to pay for their freedom,” said Philip Desgranges, an NYCLU senior staff attorney and the lead counsel on the case. “All New Yorkers deserve a justice system where the rich and the poor are equal under the law.”

Meanwhile, the broader movement toward ending the use of cash bail completely in misdemeanor and violations cases continues in both the state and nationally, as some politicians and legal reform experts continue to cite statistics showing that cash bail is a leading driver of mass incarceration that disproportionately affects the poor.

Gov. Andrew Cuomo last month announced that largely ending the use of cash bail in low-level cases would be a centerpiece of his forthcoming criminal justice reform legislative package. Manhattan District Attorney Cyrus Vance Jr., Brooklyn DA Eric Gonzalez and Westchester County DA Anthony Scarpino Jr. have all announced that their prosecutors will no longer be requesting monetary bail in most low-level or misdemeanor cases.

But in the fight to use the courts to rein in the setting of cash bail without considering the means of the defendant standing before the judge, the decision issued by Rosa appears to be a key victory for the NYCLU. Her opinion, dated Jan. 31 but received by the NYCLU yesterday, is rife with language that attacks the discriminatory use of cash bail on defendants whose poverty or limited means is simply not taken into account.

In particular, Rosa was addressing the case of Christopher Kunkeli, who had spent several months in jail on a petit larceny charge because a Poughkeepsie town court judge had set his bail at $5,000, which the NYCLU said amounted to nearly half of his annual income. But Kunkeli pleaded guilty last month to the petit larceny charge and, based on time already served, was released. And so it was clear that Rosa was issuing her declaratory decision with an eye toward broader legal reforms for her county and perhaps across the state.

“While it is clear that the legislature must act [to address cash bail-setting inequities], it is undisputed that the earliest such action could occur would be 2019,” Rosa wrote in her decision. “In the interim, thousands of individuals will be in a similar situation as the petitioner [Kunkeli] was at his arraignment.”

She continued, “It is clear to this court that a lack of consideration of a defendant’s ability to pay the bail being set at an arraignment is a violation of the equal protection and due process clause of the Fourteenth Amendment and of the New York State Constitution: Clearly, $5,000 bail to someone earning $10,000 per year, like the petitioner, without significant assets, is much more of an impediment to freedom than $5,000 bail would be to a defendant earning substantially more and/or with significant assets.”

Later in the opinion, she wrote, “Perhaps it needs to be said that discrimination on any basis, including on the basis of how much money someone has, is a violation of the equal protection clauses and due process clauses of the New York State and United States Constitutions. Freedom should not depend on an individual’s economic status,” while citing Bearden v. Georgia, 461 U.S. 660 (1983), and People ex reI. Wayburn v. Schupf, 39 N.Y.2d 682 (1976).

In addition, Rosa pointed to incarceration statistics, writing that “across our state, between 60 percent on average, and in New York City as much as 75 percent, of inmates have not been convicted of a crime but are awaiting arraignment or trial.” She then quoted public defenders in Dutchess County who testified via affidavit that normally in the county, judges set bail without inquiring into a defendants’ ability to pay it.

In addition, Rosa wrote, “Protection against discrimination is never more important than when a person’s freedom is at stake. Since one accused of a crime in the United States is presumed innocent until proven guilty, the setting of bail is supposed to be limited to those defendants who are either a danger to a specific individual or to the public or who pose a flight risk.”

Dutchess County DA William Grady, in a phone interview with the Law Journal late Wednesday afternoon, objected strenuously to Rosa’s decision and said his office intends to appeal it.

“Although this is an issue that certainly merits further discussion and debate, I do not feel that this judge issuing this decision, which is in effect legislating from the bench, is the appropriate forum to resolve what could very well have statewide implications,” he said. “And for that reason, we intend to appeal” to the Appellate Division, Second Department.

He also said that ”the judge really stretched to reference this [Kunkeli] case as the basis for her underlying decision.”

“In this particular case, the public defender, after consulting with the defendant [Kunkeli], is the very person who requested the bail that the court set,” he noted.

In January, Grady publicly opposed reforms to cash bail practices, telling the Law Journal that recent policy shifts away from requesting monetary bail in misdemeanor and violations cases are “somewhat misguided,” and that prosecutors in his county will not be joining their counterparts in some other counties.

“It is somewhat misguided to assume that you can come up with this rule and a list of exceptions to the rule,” he said.

“Each case is different, of course,” he continued, “and there are any number of extenuating circumstances that must justify the court setting the bail that would not be contained in the so-called rule and its list of exceptions.”

He also said, “There are other ways to address the issue [of cash bail leading to the poor being disproportionately kept behind bars], other than an across-the-board mandate that bail cannot be set in all misdemeanor cases.”

Among the alternatives named by Grady were pretrial “diversion” programs, such as Dutchess County’s Alternatives to Incarceration Program, which he said evaluates alleged offenders who can’t make bail for recommended release; electronic monitoring outside of incarceration; and release by the probation department.

Grady also took issue at the time with the habeas corpus petition filed on behalf of Kunkeli. He went into detail about Kunkeli’s prior criminal history and called his $5,000 bail “entirely appropriate.”

“This offender, if anything, is a poster boy for the type of offender where there should be an appropriate inquiry into his prior acts,” Grady said, adding, “Never did the defendant, through his attorney, ask for a review by the court with regard to the amount of bail set because he couldn’t afford to make it.”