Judge Says New York’s Bail Law Treats Poor Unfairly

NEW YORK — Across New York state, politicians, activists and even some prosecutors have been pushing to reduce the use of cash bail, calling it a source of injustice, especially in poor, minority communities.

But last month, for the first time, a state judge added the imprimatur of a judicial ruling to the chorus of voices clamoring for reform, lending momentum to those who want to abolish the practice.

The ruling by the judge, Maria G. Rosa of state Supreme Court in Dutchess County, was issued on Jan. 31 in the case of Christopher Kunkeli, a 32-year-old mechanic from Poughkeepsie, who was arrested in October and charged with shoplifting a vacuum cleaner from a Target store.

At Kunkeli’s arraignment, a town judge ordered bail to be set at $5,000 — without, his lawyers say, ever trying to determine if he could afford it. Kunkeli earned only about $10,000 a year, so he sat in the Dutchess County jail for months waiting for his case to come to a conclusion.

His situation is not unique. In her ruling, Rosa said that nearly 60 percent of inmates in the state’s jails are not there serving sentences, but are being held before their cases even go to trial. (That number, she noted, was as high as 75 percent in New York City.)

Because the state’s bail law does not require judges to determine whether defendants can pay the bail imposed on them, unaffordable amounts are often set. Rosa said that “people are being treated differently and unfairly based upon their indigent status” — which, she added, violated the Constitution’s guarantees of equal protection and due process.

Courts in Texas, Massachusetts and California have all made similar rulings, and over the years, the U.S. Supreme Court has held that poor defendants cannot be penalized for lacking the ability to pay for things like fines, trial transcripts and restitution judgments. But Rosa’s decision was the first in New York state to explicitly point out the constitutional inequities that indigent defendants face when they cannot pay their bail.

While her ruling did not strike down the state’s bail law, it did set a precedent that other courts might follow, especially as comparable cases come up and are eventually considered by appellate judges.

“The power of this ruling is the message it sends out,” said Donna Lieberman, the executive director of the New York Civil Liberties Union, which filed a motion on behalf of Kunkeli that led to Rosa’s decision. “There is a move afoot not just in the courts, but in the political arena to overhaul the way bail is utilized in our criminal-justice system.” In January, for example, Gov. Andrew Cuomo proposed curtailing the use of cash bail in many low-level cases as the centerpiece of a package of criminal-justice legislative fixes.

At the same time, district attorneys in Brooklyn, Manhattan and Westchester County have all announced that they will no longer ask for cash bail in many misdemeanor cases. In April, Jonathan Lippman, the state’s former chief judge, called for bail reform, noting in a broad report on the state’s criminal-justice system that judges and prosecutors rarely consider a defendant’s financial situation when requesting or imposing bail.

The purpose of bail is to ensure that defendants return to court to answer charges against them and, in part, to ensure public safety. But relying heavily on cash bail often leads to what Lieberman called a “two-tiered system of justice” in which wealthy people can pay their way out of custody while the poor remain locked up before they can even contest the accusations against them.

The collateral effects can be devastating and include losing jobs, housing, even the custody of children. Cash bail also places enormous pressures on the poor, Lieberman said, to plead guilty in their cases simply as a means to get themselves out from behind bars.

That is precisely what Kunkeli did. Shortly after the NYCLU filed its motion in his case, the Dutchess County district attorney’s office offered him a plea deal, said his lawyer, Philip Desgranges. Kunkeli took the deal, which called for him to be sentenced to five months in prison, minus time served. Since he had already served most of that time waiting for his trial, he spent only another week in custody before he was released.

Rosa issued her decision in Kunkeli’s case after he had been freed and his case was already over, suggesting she was trying to make a declaratory statement about cash bail not only to her colleagues on the bench, but also to lawmakers in Albany.

“While it is clear that the Legislature must act,” she wrote, “it is undisputed that the earliest such action could occur would be 2019. In the interim, thousands of individuals will be in a similar situation as the petitioner was.”