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Lawmakers Have a Golden Chance to Fix New York’s Broken Bail System

By: Donna Lieberman Executive Director

Every year, tens of thousands of New Yorkers spend days, weeks or even months locked up in jail even though they have not been convicted of a crime. They are casualties of a broken and biased bail system that makes a mockery of the presumption of innocence and keeps New Yorkers behind bars for no reason except they can’t afford to buy their way out on bail.

What our broken bail system means is that New Yorkers who can’t come up with $500, $1,000 or $5,000 for bail are forced to miss days of work, miss rent payments, lose their jobs and more. It means kids being separated from their parents.
And far too often, people who’ve been incarcerated for weeks or months plead guilty to something they didn’t do — and get a permanent criminal record — just to gain their freedom. For the most part, they never even get to see the evidence against them.


Imagine a sold-out crowd at Yankee Stadium. Then double it. That’s how many New Yorkers a new NYCLU analysis found had spent at least a night in jail on bail over a five-year period — in just eight of New York’s 62 counties alone. That’s more than 90,000 people in just a portion of the state: Albany, Dutchess, Monroe, Niagara, Orange, Schenectady, Ulster and Westchester counties.

We know this because we sent public records requests to jails and did the math for our report, “Presumed Innocent for a Price.” Though the impact of bail in New York City has been documented, little has been understood about what it has done to upstate communities. In the counties we sampled, we found that 60 percent of people were held on only minor offenses. More than 45,000 people spent more than a week in jail in just these counties. Over 21,000 were held because they couldn’t pay a bail of $500 or less.

Across the state, New Yorkers are being punished for their poverty. Not only does this fly in the face of justice, it is not how bail is supposed to work. The purpose of bail is to ensure someone returns to court, not to exact punishment prior to conviction.

Yet judges aren’t considering what individuals can afford, and they are not looking at other means to ensure defendants return for their court dates.

In Dutchess County, Chris Kunkeli knows all too well what our broken bail system means. He spent three months in jail awaiting trial on a shoplifting charge. He spent Christmas in a jail cell instead of with his family. In January, the NYCLU sued on his behalf. The judge had set Kunkeli’s bail at half of his annual income, never taking into consideration Kunkeli’s finances or weighing alternatives like unsecured bond or monitored supervision to ensure his return to court for trial.

Lawmakers have no reason to wait for the courts to force their hand. There is broad support in both major parties for bail reform.

How many Christmases do New Yorkers lose though they are presumed innocent? How many days of work, rent payments and other obligations do they miss?

Gov. Andrew Cuomo and some legislative leaders had begun asking these questions, too, and had proposed bail reform in the state budget. Yet in the final stretch of budget negotiations this week, there are reports that lawmakers will delay taking action, allowing bail reform to wait.

That would be a costly mistake. Not one more New Yorker should have to serve time while presumed innocent because they don’t have money in the bank. Meaningful reform would spare Chris Kunkeli and tens of thousands of others across our state from pretrial punishment. It would also save state and local governments hundreds of millions of dollars.

Rather than sitting on their hands, lawmakers should use the state budget process to fix our bail system in a few key ways. People charged with minor offenses should be released before trial; jail time should only be used when there is no other way to ensure someone will return to court. Bail should never be set without lawyers present, should take into consideration a person’s ability to pay, and should be reviewed periodically by judges whenever a defendant remains in jail before trial. Judges should be required to consider alternatives to cash bail and to state the reasons for any bail decision.

If lawmakers don’t act, the courts are showing they will. As Dutchess County Supreme Court Judge Maria Rose wrote in Kunkeli’s case: “In the interim, thousands of individuals will be in a similar situation as the petitioner was at his arraignment.” In a first for New York courts, she ruled that judges must consider a defendant’s ability to pay when setting bail.

But lawmakers have no reason to wait for the courts to force their hand. There is broad support in both major parties for bail reform. Cuomo and legislative leaders have the chance to show they are listening and bring equal justice to tens of thousands of their fellow New Yorkers.

This piece originally appeared as an op-ed “Bail reforms needed to bring justice to all in state” in the Albany Times Union on March 26, 2018.

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