Judge Maria Rosa of Dutchess County has ruled in favor of plaintiff Christopher Kunkeli who filed a lawsuit through the New York Civil Liberties Union (NYCLU) regarding an inability to pay bail based on his level of income.  The Democratic Rosa said that determining bail without considering the ability for criminals to pay violates the equal protection and due process clauses of the federal and state constitutions.Kunkeli had been charged with petit larceny for allegedly stealing a vacuum cleaner from a store.  He is a mechanic and was 32 years old when his petition was filed.  Kunkeli was held on $5,000 bail for nearly three months before he pleaded guilty to a misdemeanor and was sentenced to time behind bars.  Rosa said the plea did not make the case moot because of the novel issue and the likelihood of repetition.  She also rejected arguments that the issue regarding determining bail based on income is for the legislature.In her decision, Judge Maria Rosa said, “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.”

Photo by Patrick Fore on Unsplash

NYCLU senior staff attorney and lead counsel Philip Desgranges said his organization intends to use Rosa’s decision to pursue statewide reform in order to put a stop to jailing people simply because they are unable to afford bail.  “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,” he confirmed.  “All New Yorkers deserve a justice system where the rich and the poor are equal under the law.”“This ruling is an encouraging step towards ensuring that our justice system treats everyone equally,” said Donna Lieberman, executive director of NYCLU.  “The basic right to be presumed innocent until proven guilty should not be contingent on the size of someone’s wallet.”District attorneys in major New York cities, including Manhattan, Brooklyn and those in Westchester County have already announced their offices will not seek cash bail in the majority of lower charge criminal cases.Dutchess County District Attorney William Grady said that the shift away from monetary bail in misdemeanor cases in favor of determining the amount based on income is “somewhat misguided,” however, and prosecutors in his county should continue with the status quo.  This is despite reports that show one of the leading drivers of mass incarceration in Dutchess County is the inability of inmates to pay bail.  Data analyzed by the NYCLU showed that 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, because they couldn’t afford to be released.  Grady said he felt the $5,000 bail set for Kunkeli was “entirely appropriate” because of Kunkeli’s prior criminal history.

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JUDGES MUST CONSIDER ABILITY TO PAY WHEN SETTING BAIL, DUTCHESS COUNTY COURT RULESNew York judge rules it's unconstitutional to set bail without regard to ability to payJudge Decides Setting Bail Without Regard to Ability to Pay Violates Constitutional Rights