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Judges Must Consider Ability to Pay When Setting Bail, Dutchess County Court Rules

Dutchess County bail victory
POUGHKEEPSIE, NY – The Dutchess County Supreme Court ruled this week that judges must consider a defendant’s ability to pay bail, as well as less restrictive alternatives to bail, when setting release conditions for people facing criminal charges. 
The New York Civil Liberties Union filed suit in early January seeking the release of Christopher Kunkeli, a Dutchess County man who was detained for nearly three months ahead of his trial for a petty theft charge. The ruling comes as efforts to reform bail practices, which disproportionately punish the poor, grow across the state. 
“This ruling is an encouraging step towards ensuring that our justice system treats everyone equally,” said Donna Lieberman, executive director of the New York Civil Liberties Union. “The basic right to be presumed innocent until proven guilty should not be contingent on the size of someone’s wallet.”
Dutchess County Supreme Court Judge Maria Rosa agreed with the NYCLU that assigning bail without weighing a defendant’s ability to pay and considering less restrictive alternatives violates constitutional rights to due process and equal protection. This is the first such ruling in New York, and comes at a time when courts across the country are beginning to impose similar requirements. The judge in Mr. Kunkeli’s petit larceny case had 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. Mr. Kunkeli was held for nearly three months, and eventually pled guilty to a misdemeanor charge. “Five thousand dollars stood between me and my freedom,” said Mr. Kunkeli. “Because I couldn’t afford to buy my way out of jail, I couldn’t spend time with my friends and family over the holidays.”
Dutchess County practices show why cash bail is one of the leading drivers of mass incarceration. Data analyzed by the NYCLU showed that people who had not yet been to trial accounted for 71 percent of the county’s jail population in 2016. Between 2010 and 2017, pretrial defendants spent an average of 32 days behind bars for misdemeanor offenses and 16 days for mere violations, like disorderly conduct. During the same period, 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.  
Most judges throughout the state, including those in Dutchess County routinely set bail without considering defendants’ ability to pay. This ruling comes as efforts to reform bail practices are high on the agenda for the state legislature, and after district attorneys in Manhattan, Brooklyn, and Westchester announced that they will not seek bail for misdemeanor offenses. As Judge Rosa noted in her decision, most people in New York’s jails are there because they are awaiting trial, not because they have been convicted of a crime. 
“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, NYCLU senior staff attorney and lead counsel on this case. “All New Yorkers deserve a justice system where the rich and the poor are equal under the law.” 
In her decision, Judge Maria Rosa noted, “While it is clear that the legislature must act, 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 at his arraignment. 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.” The NYCLU will continue to pursue litigation and advocacy efforts to ensure that no New Yorker is locked up simply because of their inability to pay bail.  
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