As state lawmakers prepare to debate a sweeping overhaul of the state’s bail system, a new report claims that Ulster County residents are routinely jailed for minor crimes because they cannot pay small amounts of cash bail.
Advocates for bail reform say it is time to do away with a system that can upend lives and lead even innocent people to waive their right to a trial simply to get out of jail. But some, including Ulster County District Attorney Holley Carnright, argue that bail reform, as currently proposed, would take away judges’ and prosecutors’ discretion in sensitive cases, like those involving domestic violence, and could endanger public safety.
Gov. Andrew Cuomo put bail reform on the table in his January State of the State address. In it he calls for the elimination of monetary bail for all misdemeanor and non-violent felony crimes. Instead, the accused would be released, either on their own recognizance or with court-imposed conditions ranging from mandatory check-ins with a pretrial services agency to home confinement. Those accused of violent felonies would be entitled to a judicial review of their personal and financial circumstances before bail is set. They would also have the option of release on an unsecured or partially secured bond rather than cash bail or a bond put up by a professional bail bondsman. Judges would retain their ability to remand defendants without bail in serious cases involving violence or in cases where the accused presents a serious flight risk or is accused of new crimes while on pre-trial release.
“New York’s bail system fails to recognize that freedom before trial should be the rule, not the exception,” Cuomo’s statement reads. “And by tying freedom to money it has created a two-tiered system that puts an unfair burden on the economically disadvantaged.”
In Ulster County on a recent Friday, 66 percent of inmates at the county jail were there either because they had been remanded without bail or they could not pay bail set by a judge. A report released earlier this month by the New York Civil Liberties Union suggests that at least some of them have been incarcerated without trial for what most would consider petty crimes. The report, “Presumed Innocent for a Price,” examined the impact of cash bail in eight New York counties, including Ulster, by examining jail data between 2010 and 2014. During that period, the study found, 6,344 were jailed with set bail in Ulster County. Four thousand six hundred and thirty-five of those people spent at least one day in the jail because they could not make a set bail amount. Two thousand and eighty-eight were jailed for a week or more. Nearly half of the people jailed on bail had bail amounts under $1,000.
The study also found that many people were held on bail for minor offenses like petit larceny and misdemeanor drug possession. In Ulster County, the study found that between 2010 and 2014, 3,288 defendants were jailed with bail for misdemeanor crimes and another 325 spent time behind bars for violations, the lowest level of criminal infraction. The study also found that cash bail disproportionately impacts non-white defendants who were more likely to be poor and thus more likely to await trial in jail. Reform advocates say that even brief stays in jail can have serious impacts, ranging from job loss to loss of child custody and interruption of medical treatment.
“For one person to lose housing or their children or their job because they can’t make low bail is a terrible consequence,” said Ulster County Public Defender Andrew Kossover. “I don’t believe it happens all that often in Ulster County, but for the small number of people it does happen to it can have really tragic consequences.”
Kossover said that an even more insidious byproduct of cash bail is that it can encourage defendants, even innocent ones, to waive their right to a trial. It can take months for a case to go to trial but during that time prosecutors may offer a deal which will allow the defendant to go home immediately in exchange for a guilty plea.
“If you can’t make bail, you might remain incarcerated longer than any sentence you would receive if you went to trial and were found guilty,” said Kossover. “Very few people, even if they’re not guilty, if you tell then you can go home if you plead guilty, will stay in jail. They’ll say, ‘I’ll plead guilty to anything to get out of here.’”
Carnright said numbers like those contained in the NYCLU report don’t tell the whole story. In some cases involving domestic violence, he said, the level of the crime may be minimal — violation harassment or criminal contempt for violating an order of protection — but the danger to the victim is very real. In other cases, defendants may not have anywhere to go, leaving judges with a choice between imposing bail and sending them to jail or leaving them to their own devices on a cold night outside an isolated rural town court. Carnright said that his assistant district attorneys are trained to use discretion when requesting bail, especially in misdemeanor cases.
“If we request bail on a petit larceny case, you can bet they have 10 prior convictions and maybe two or three pending from the week before,” said Carnright.
Carnright also took issue with the process that will likely determine the fate of bail reform. In recent years, Cuomo and state lawmakers have used the state’s budget process to enact major legislation, like last year’s “raise the age” law which increased the state’s age of criminal responsibility from 16 to 18. Tackling complex and entrenched legal issues like bail, Carnright said, should be a careful and deliberative process — not part of a rushed effort by politicians to wheel and deal their way to a state budget ahead of an April 1 deadline.
“These very important, sweeping proposals warrant a lot of discussion and full review,” said Carnright. “Now, instead of two years to get this right, they’re trying to do it in two months.”