Many of the persons sitting in New York jails haven’t been convicted of anything. They’re awaiting trial, and they are stuck in jail because they can’t afford to pay their bail.

On a typical night, about four thousand suspects are in New York City’s various jails because they cannot pay a cash bail to get released before trial.

In its own way, the city is reforming its cash bail system. Some believe a cash bail requirement unconstitutionally punishes the poor merely because they are poor.

It’s part of a national movement to change the way that presumably innocent criminal suspects are treated after an arrest but before a trial.

PRECISELY WHAT IS THE DEFINITION OF BAIL?

After an arrest, bail is what a suspect must pay to the court to be released while awaiting trial.

Nationally, critics charge that the bail system unfairly discriminates against the poor. More affluent defendants can afford bail and be released. Less affluent defendants cannot.

The upshot is that less affluent defendants lose their freedom and stay trapped in jail simply because they are poor. And that, many are saying, violates the United States Constitution.

WHERE IS THE BAIL SYSTEM CHANGING?

In 2017, for example, a federal judge ruled that one Texas county’s bail system unfairly impacted the poor and violates the Fourteenth Amendment’s equal protection requirement.

Efforts to eliminate cash bail are currently underway in a number of states including Colorado, New Jersey, and California as well as New York.

Many New Yorkers were unaware that bail is even an issue prior to the death of Kalief Browder.

Browder committed suicide in 2015 after sitting in jail for three years awaiting trial. He had no money for bail and was never convicted of the original robbery charge that sent him to Rikers.

For the moment, non-profit organizations and groups like the Brooklyn Community Bail Fund, the Liberty Fund, and the Bronx Freedom Fund are paying bail costs for some of the lower-income suspects who are accused of misdemeanors in New York City.

IS SUPERVISED RELEASE A PRACTICAL ALTERNATIVE TO CASH BAIL?

The city has additionally increased its support for a no-cash bail, supervised release program that permits defendants to stay in contact with a supervising agency – in person or over the phone – while awaiting trial.

The supervised release program has handled several thousand defendants in the past two years. Almost all of these defendants show up for their scheduled court appearances.

However, domestic violence suspects are not eligible for the program, and other defendants may be placed on supervised release only with the approval of a prosecutor.

Prosecutors in Brooklyn and Manhattan have pledged to end the practice of requiring a cash bail from low-level misdemeanor defendants, and Governor Andrew Cuomo has also expressed support for the statewide abolition of the cash bail system.

But already, bail is almost never required of defendants charged in New York City with crimes like marijuana possession or turnstile jumping, and less than 15 percent of third-degree assault defendants have a bail amount set.

IS THERE STILL SUPPORT FOR THE CURRENT BAIL SYSTEM?

Moreover, not everyone agrees that cash bail should be completely abolished.

Some New York prosecutors, judges, and bail industry professionals stress that bail has been a practical and useful legal tool for decades – and they ask what will replace it.

Brooklyn District Attorney Eric Gonzalez, for example, believes that cash bail works well for suspects charged with serious crimes, and Queens District Attorney Richard Brown agrees.

“In Brooklyn, 44 percent of the cases we ask for bail on are domestic violence cases and sex crimes cases,” Gonzalez said.

WHEN BAILS ARE SET, WHAT’S TAKEN INTO ACCOUNT?

When a suspect’s bail amount is determined, a judge in New York considers:

1. the details set forth in the criminal charge
2. a suspect’s criminal record
3. public safety
4. the likelihood that the suspect will fail to appear or will flee the jurisdiction

If a defendant does not appear as scheduled for a court appearance, a warrant will likely be issued by the judge for that defendant’s immediate arrest.

If some prosecutors in New York are expressing reluctance to abandon the cash bail system, one reason is because the prosecutors often use bail as a “bargaining chip” in plea bargain agreements, and they find that it’s a useful tool.

Those who support the current bail system also argue that reforms will cost millions of taxpayer dollars.

HOW CAN THE BAIL SYSTEM IN NEW YORK BE CHANGED?

New York City can’t independently make any actual legal change to the cash bail system. That power resides exclusively in Albany with the New York State Legislature and the Governor’s Office.

“Cities don’t normally have laws that govern what pre-trial justice can look like, so our hands are tied a bit,” according to the Mayor’s Office of Criminal Justice.

And New York State Senator Michael Gianaris is offering a proposal to end the cash bail system statewide, but he is doubtful that the measure will pass in 2018.

Cash bail may never be fully eliminated in this state, but in the years to come, it may be quite rare. Relaxing the cash bail requirement, however, does not mean that defendants can expect leniency regarding their criminal charges if they are convicted.

IF YOU ARE ARRESTED FOR A CRIME, WHO CAN HELP?

In New York City, Westchester County, or anywhere in the state, if you are arrested and charged with a criminal offense, you must have legal help at once.

It is imperative to contact an experienced criminal defense attorney as quickly as possible if you are facing any criminal charge in New York.

Criminal suspects have the right to remain silent and the right to an attorney. Take advantage of those rights if you are placed under arrest for any reason.

WHAT’S AT STAKE IF YOU’RE CHARGED WITH A CRIME?

Your future and your freedom will be in the balance.

A Westchester County criminal defense attorney can argue to have your bail reduced or to have you released on your own recognizance.

Your lawyer will explain your bail situation, safeguard your legal rights, and fight aggressively for the justice you need and deserve.

After any criminal arrest, you must contact the right defense attorney and have that attorney bring your case to its best possible conclusion. It’s the right call to make.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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