How long will we continue to put innocent people in jail? As a public defender, I represented people who were poor. In the hundreds of cases I handled, the Assistant District Attorney would too often ask the court to set bail beyond my client’s reach. I would tell the court that it was impossible for my client to pay that much, and point out that the Eighth Amendment to our Constitution explicitly states that “excessive bail shall not be required.” Most times, the judge deferred to the DA’s recommendation and my client was taken to jail without being found guilty of anything.
Every day in this county, legally innocent people are behind bars simply because they cannot afford bail.
According to our sheriff, Juan Figueroa, on average, 60% of the jail population is made up of people held on bail.
As long as money is a condition of pretrial release, poor and working-class people will remain behind bars while those who are wealthy go home regardless of the likelihood of innocence or guilt. This is a fundamental injustice.
The harms of unaffordable cash bail are unequivocal: people lose their jobs, homes and families while detained. Even worse, innocent people sometimes plead guilty just to get out of jail. This is how it works. After spending days or weeks in jail, you — an innocent defendant — are brought back to court and offered the chance to plead guilty for “time served.” You have the option to plead and go free or go back to jail and wait for trial. What choice would you make?
A New York Civil Liberties Union study found that between 2010 and 2014 there were 6,344 pretrial detainees held in the Ulster County Jail. According to the study, over 55 percent of all pretrial detainees who spent time in the Ulster County Jail after bail was set were charged with only misdemeanors or violations. The most common charges were Harassment in the Second Degree, Disorderly Conduct and Trespass. The maximum fine for these violations is $250. Approximately 40 percent of the people charged with these violations had bail set higher than the maximum penalty.
Another unseemly side of our cash bail system is the for-profit bail industry. Some defendants are able to purchase their freedom with bail bonds, which require non-refundable premiums of 10 percent or more.
The for-profit bail industry, comprised of bail bondsmen and insurance companies that underwrite and nationally collect revenues of over $2 billion a year, is a tax on the poor.
The purpose of bail is to ensure the appearance of a defendant in court, not to exact punishment before conviction. The cash bail reforms enacted by our state legislature and signed into law by Gov. Cuomo will not take effect until Jan. 1, 2020. This law has a mandatory release or release with non-monetary conditions for almost all violations, misdemeanors and nonviolent felonies.
Our district attorney has enormous discretion to implement these changes today and immediately stop the injustices that occur under the cash bail system. The U.S. Supreme Court says the prosecutor’s interest in a criminal case is “that justice be done.” Let it be done today, not six months from now. The DA should start by reviewing the cases of every defendant currently held on bail in the Ulster County Jail and release them from pretrial detention unless they pose a risk to public safety.
No doubt some people need to be in jail, but no one should languish behind bars, waiting for due process, simply because they are poor.
David Clegg is an attorney, ordained minister and member of the Ulster County Human Rights Commission. He is the Democratic Candidate for Ulster County district attorney in this fall’s election.