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In setting bail, court must consider ability to pay and alternatives

By: Scott Forsyth//February 21, 2018

In setting bail, court must consider ability to pay and alternatives

By: Scott Forsyth//February 21, 2018

FORSYTHPeople are talking seriously about bail reform: the reduction or the elimination of bail for certain persons awaiting trial. The reasons are many.

There are the cost savings — $40 a day to house a pretrial detainee in the Monroe County Jail versus $7 a day for the same person to be supervised by pretrial release. There is the explosion of pre-trial detainees — 33 per 100,000 Monroe County residents in 1980 to 183 in 2015.

There are the disparate outcomes suffered by those detained versus those who obtain their freedom. The former are four times more likely to be sentenced to jail and three times more likely to face longer jail consequences. Finally, there are the social and economic consequences — loss of job, missed home payments and child support, and disrupted family lives.

New York law is very clear that in the majority of cases a judge hearing a bail application may only determine “the kind and degree of control or restriction that is necessary to secure (a defendant’s) court attendance.” The law identifies several factors the judge “must” consider, including the defendant’s character, employment and “financial resources,” ties to the community, and criminal record. CPL § 510.30.

Not mentioned is the defendant’s threat to the community or his level of dangerousness. The focus of the law is on securing the return of the defendant to court.

If a judge decides to set bail, he has nine options, ranging from the traditional cash or insurance company bond to the less commonly-used unsecured or partially secured bonds. The latter are contracts whereby a person promises to pay a sum of money if the defendant fails to appear.

The legislature passed the bail law in 1970. On paper it was and remains one of the most progressive in the country. However, in practice it has failed.

In 2017 former Chief Judge Jonathan Lippman observed “there is precious little evidence that either prosecutors or judges consider a person’s ability to pay bail, even though New York’s bail statute requires that the ‘financial resources’ of the defendant be taken into account.”

Also, many defense attorneys believe judges do weigh heavily the dangerousness of the defendant, the statute notwithstanding. Consequently, we have high rates of pretrial detention — 1,000 persons or 71% of the occupants of the Monroe County Jail in October 2017.

In his State of the State address, Gov. Andrew Cuomo proposed a series of reforms, starting with the elimination of money bail for persons charged with misdemeanors and nonviolent felonies. A judge would release these defendants on their own recognizance or with reasonable conditions designed to ensure their return to court, such as release to a pretrial oversight program. A person charged with a violent felony would receive an individualized hearing in which the judge must review on the record the statutory factors.

The chances of the proposal passing are murky. The Senate majority leader has stated he will not have his chamber take it up.

The NYCLU is not waiting for the legislature to act. Last month it filed a habeas corpus petition on behalf of Christopher Kunkeli, a resident of Dutchess County. He was arrested for allegedly shoplifting a vacuum cleaner from Walmart, a petit larceny.

At Kunkeli’s arraignment the judge set a cash bail of $5,000 or a bond of $10,000. The judge did not inquire whether Kunkeli had the means to pay those amounts and did not consider the alternatives, both financial and nonfinancial, that would reasonably assure his return. $5,000 is half of Kunkeli’s annual income. When he did not pay the bail, the judge sent him to jail

Dutchess County is like Monroe County. 71% of the occupants of its jail are pretrial detainees. 60% had a misdemeanor as their most serious charge, compared to 46% in Monroe County. Many detainees were jailed for not making bail of $500 or less.

The NYCLU did not challenge the constitutionality of New York’s bail law on its face. Instead, it argued the law as applied to Kunkeli violated his rights under the Due Process and Equal Protection Clauses.

The defect in the law’s application was “a failure to consider ability to pay and a failure to determine that no less restrictive alternatives short of detention would adequately assure (the defendant’s) return to court.” The court hearing the petition agreed. New York v. Anderson, No. 90/2018  (Sup. Co. Dutchess Co. Jan. 31, 2018).

The Supreme Court has not directly addressed the issue in the case. However, it has held that states cannot discriminate against indigent defendants “at all stages” of criminal proceedings. Griffin v. Illinois, 351 U.S. 12 (1956).

One stage is post-conviction. Thirty-five years ago, the Supreme Court ruled a state court cannot revoke a defendant’s probation and then incarcerate him for the balance of his probationary period, because he lost his job and thereby his ability to pay a fine. The state court must conduct an indigency hearing and consider alternatives to incarceration. Bearden v. Georgia, 461 U.S. 660 (1983).

As the Dutchess County court noted, “(a) pre-trial detainee has an even stronger liberty interest since he hasn’t been convicted.” Therefore, “when imposing bail (a) court must consider the defendant’s ability to pay and whether there is any less restrictive means to achieve the State’s interest in protecting individuals and the public and to ‘reasonably assure’ the accused returns to court.”

The court’s holding breaks new ground in New York and is welcome. The only troubling note, not relevant to the decision, is the court’s talk of protecting the public as a purpose for bail. That sounds like preventive detention, which is not the policy of the state.

We shall see how the courts in our area respond to the holding in the Dutchess County case. One thousand detainees, out of a jail population of 1,400, is way too many.

Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or [email protected].

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