The bail system in New York may soon end with Gov. Andrew Cuomo proposing a measure to end the practice and democrats controlling the state legislature.
Advocates for ending the system argue bail, which by state law is only meant to assure a defendant shows up to court dates, ends up discriminating against the poor, who often spend months in jail while legally innocent as their case slogs through the justice system.
The Democrat-controlled state Assembly passed a bill last year severely curtailing the practice, but the bill was never taken up by the Republican-controlled state Senate. Democrats now control both chambers.
Democratic Assemblyman Kevin Cahill, who represents most of Ulster County and part of Dutchess County, voted for the 2018 bill and said the issue would again be taken up by the legislature.
“In the next several weeks we’re going to be discussing and debating what we can do in terms of a sort of omnibus criminal justice reform package, and bail is going to be a key component,” he said.
Getting Bailed Out
When someone is arrested in New York, they must first appear at an arraignment, where they enter a plea of guilty or not guilty.
The judge can then do one of three things: release them under the knowledge a warrant can be issued if they don’t appear for their next court date; set bail, which the defendant must temporarily give to the court until their case is decided to assure their return; or give them pre-trial detention, where the defendant is incarcerated at a local jail until the end of their case.
Many of those issued bail cannot pay.
Defendants incarcerated awaiting trial — either for failing to make bail or because of pre-trial detention — are sent to the county’s jail. Jails (as opposed to prisons) hold those awaiting trial, as well as anyone in the county sentenced to less than a year, people who have violated their parole, and defendants being held for other courts.
In Columbia County Jail in 2017, the majority of people were awaiting trial — 74 percent — far outnumbering those convicted of a crime, according to the Vera Institute of Justice, a criminal justice reform group.
Linda Mussman is the president of the Columbia County Bail Fund, a nonprofit that pays bail for defendants in the county.
The nonprofit only puts up bail for defendants charged with misdemeanors and whose bail is less than $2,000, following state laws regulating bail funds.
The nonprofit has bailed out 21 people since it started about a year ago, Mussman said.
“There’s been cases where people have a job, and because we’ve bailed them out, they’ve been able to continue to go to work…sometimes people are single parents…and the children are alone, and that creates another level of chaos in their lives,” she said.
Defendants who don’t make bail must appear in court in their jail duds, which in Columbia County consists of a zebra-striped jumpsuit with the jail’s initials imprinted on the back in red type and handcuffs shackled to a wide leather belt (defendants who make it to trial may wear their personal clothes).
Mussman argues the look creates a bias in the minds of the judges and others in court.
“You’re being treated as though you are guilty,” she said.
Mussman defines bail as a “class issue,” saying bail reform is trying to “eliminate the role of money determining freedom.”
Being stuck in jail also disallows a defendant from properly preparing for trial, Mussman said, as the only legal resources they may have is a public defender, “who sees you for five minutes, if you’re lucky.”
Some defendants have not shown up to court after being bailed out by the nonprofit, Mussman said.
“I have some people who have drug problems that, honestly, they can’t surmount, and there’s no way of us predicting what’s going to happen,” she said. “We hope they can show up…I can’t explain people’s complicated lives — people sometimes make mistakes, and sometimes they make them over and over.”
Assemblyman Cahill voted for the 2018 bail reform bill.
“Cash bail is proven to keep only one kind of person in jail for the most part, and that’s not the person who’s a danger to society,” he said. “It’s not a person who’s at risk of…fleeing the jurisdiction. It keeps people who don’t have access to the relatively small amount of money that is necessary to get themselves out of jail.”
When asked if people were less likely to show up to court without bail being set, Cahill said the fear of becoming a fugitive was a better motivator than the fear of losing money.
Gov. Cuomo proposed in his 2019 budget to eliminate cash bail for all crimes, as well as limiting the crimes where pre-trial detention could be ordered to Class A felonies, which include murder, large-scale drug trafficking and certain child-sex crimes, as well as most violent Class B and violent Class C felonies, such as injurious assaults and certain weapon possession crimes.
The 2018 Assembly bill did not go as far with bail, preserving it for many crimes, including misdemeanor sex crimes, and all but three violent felonies. Defendants could be additionally ordered into pre-trial detention for Class A felonies, terrorism charges, felony sex crimes, or in a smattering of other instances.
Electronic monitoring, such as ankle monitors, could also be ordered for defendants charged with other misdemeanors like domestic violence crimes.
However, Assembly Speaker Carl Heastie, a democrat, said this bill “wasn’t good enough,” according to the Gotham Gazette.
With the Senate now in Democratic hands, the legislature has swung left, passing or stating its intention to pass a series of wishlist bills, including adding gender identity to non-discrimination laws, expanding abortion access, and gun restrictions.
The Criminal Justice System Responds
The District Attorneys Association of the State of New York (DAASNY), a professional organization of criminal prosecutors in the state, endorsed a different set of recommendations concerning bail this month, according to DAASNY spokeswoman Morgan Bitton.
The recommendations were released by the New York State Justice Taskforce, which encompasses “a broad cross-section of the criminal justice community.”
“Bail reform is inevitable,” the recommendations read, “and it is important that we take this pivotal moment to ensure that the reform is done in a way that is safe and meaningful, on a systematic level.”
Defendants facing misdemeanors should be released without bail, according to the recommendations, as well as those facing non-violent felonies, other than Class A and certain Class B non-violent felonies.
However, though there is a presumption the defendant will be released without bail in most cases, the judge may set bail if they determine there is “a significant risk the defendant will not return to court” — the same reasoning used for issuing bail or ordering pre-trial detention as exists today.
The recommendations also suggest expanding the reasons why bail or pre-trial detention can be ordered.
In New York law, the only reason a judge can set bail or order pre-trial detention is to ensure a defendant will show up to court dates.
The recommendations suggest judges be allowed to set bail or order pre-trial detention “if the court determines that the defendant currently poses a credible threat to the physical safety of an identifiable person or group of persons.”
There is a “perception” the courts do this anyway, and it would behoove the justice system to do it out in the open, which would be more transparent and ensure there is due process, according to the recommendations.
Columbia County District Attorney Paul Czajka called the new recommendation “an important step forward.”
Judges can already impose pre-trial detention when they feel the defendant would be dangerous to others, “but without actually saying that is the case,” Czajka said.
District Attorneys (who can recommend pre-trial detention) and judges will argue a defendant accused of a particularly dastardly crime, or who poses a danger to someone, is less likely to show up to their court date, Czajka said.
DAs use this argument to recommend jailing someone they feel is a danger before trial, he said.
The New York State Justice Taskforce recommendations do not go far enough, Czajka said, because “although I can prove that the defendant in question may in fact, harm a person or persons, I cannot identify that person or the groups of persons” in some cases.
When asked about the governor’s proposal to eliminate cash bail and drastically limit when pre-trial detention could be ordered, Czajka said the law would amount to an unfunded mandate, “because it will be up to Columbia County to track down those defendants who flee the jurisdiction and pay for their return.”
Though he called bail funds “commendable,” Czjaka said they can undermine the purpose of bail.
“The logic of setting bail is that if a person puts up money, and it’s possible that he could lose that money, he has an incentive to return and follow the dictates of the court,” he said. “If it’s not his money, however, then that motive may be missing.”
Jail can also be helpful to drug addicts, who are forced to go cold turkey while incarcerated, Czajka added.
He said it was “not unusual” for loved ones of an addicted defendant to want them in jail “to prevent them from hurting themselves with drugs.”
Dave Clegg, a democratic candidate for Ulster County District Attorney, said he believed most defendants accused of low-level, non-violent crimes should be released without bail.
However, Clegg, a former public defender and 2018 congressional candidate, said he saw how prosecutors would want the ability to argue against release for these crimes “on very rare occasions.”
“Bail certainly at times is appropriate” for those accused of violent crimes, he added.
While a public defender in Ulster County, Clegg said it was “infuriating” to see bails set for minor crimes, like petty larceny, that were out of reach for the defendants.
“You were penalizing the person for being poor…or not having family connections,” he said.
“[Bail] wasn’t set relative to the person’s ability to pay in any way, shape, or form,” he added.
Another problem with the current bail system was its arbitrariness, Clegg said.
“It depends on what DA you are in front of, it dependents on what judge you’re in front of, it depends on what court you’re in…that’s not equal justice,” he said.
Clegg said it’s “conceivable” more defendants would jump court without bail, but added with modern technology, it was usually easy to track them down.
However, even if defendants are slightly less likely to show, one must weigh this against the positives of “not incarcerating people who haven’t been found guilty,” he said.
Afterword: Innocent till Proven Guilty?
I had seen what Czajka talked about.