Courtesy of Governor’s office
In Governor Andrew Cuomo’s annual State of the State Address last month he proposed ending the use of cash bail in low-level cases.
By Gina Martinez

City Councilman Rory Lancman (D-Hillcrest) is praising a landmark decision that determined that judges should consider a defendant’s ability to pay before setting bail.

Dutchess County Supreme Court Justice Maria Rosa ruled that setting cash bail for a defendant without considering his or her ability to pay violates the constitutional rights of due process and equal protection.

The decision came after a New York Civil Liberty Union lawsuit on behalf of Christopher Kunkeli, who spent three months in jail in Poughkeepsie on a petit larceny charge after a judge set his bail for $5,000. According to the NYCLU, Kunkeli only earned $10,000 a year, making his bail half of his yearly earnings. Kunkeli pleaded guilty to the petit larceny charges and was released on time served last month.

Rosa ruled that the bail was set at an unreasonable amount, saying freedom should not depend on an individual’s economic status.

“Protection against discrimination is never more important than when a person’s freedom is at stake,” Rosa wrote. “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.”

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.

Despite this, tens of thousands of New Yorkers like Kunkeli who cannot afford bail are kept in jail simply because they cannot afford to pay. The NYCLU said it is seeking a ruling that could set standards for state courts and lead to large reductions in the numbers of New Yorkers held before trial.

New York’s bail statute allows judges to consider alternatives to restrictive forms of bail, according to the NYCLU. Alternatives include unsecured and partially-secured bond and pretrial release services, which are available in most counties and have been successful at ensuring participants appear in court.

The NYCLU said the judge in Kunkeli’s case set his $5,000 bail and $10,000 bond without considering his ability to pay, and ordered him jailed in Dutchess County when he could not come up with the money.

In Gov. Andrew Cuomo’s annual State of the State Address last month, he proposed ending the use of cash bail in low-level cases. 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. Queens DA Richard Brown has stated that the numbers in the borough show that the current policy on bail in misdemeanor cases when a defendant has a history of not showing up to court works.

Lancman, who also serves as the chairman of the Committee on the Justice System, has been at the forefront of the bail reform movement in New York City. In 2015 he convened a Courts & Legal Services Committee hearing to examine the current bail system and he is also the prime sponsor of legislation to provide judges with defendants’ financial information at arraignment.

He said this ruling is a step in the right direction

“This landmark ruling sets an important standard for our judges that setting bail without first considering a defendant’s ability to pay is a violation of both the United States and New York Constitutions,” he said. “As chair of the Committee on the Justice System, I will continue to support programs that provide judges with defendant’s financial information prior to setting bail, like the Vera Institute’s Bail Project.”

Reach Gina Martinez by e-mail at gmartinez@cnglocal.com or by phone at (718) 260–4566.

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