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NY Judge: Bail Must Be Set With Regard to Ability to Pay

By William Vogeler, Esq. on February 12, 2018 | Last updated on March 21, 2019

Don't do the crime if you can't do the time, right?

But how about, don't set the bail because the system's a fail? That's what judges are saying from New York to California.

It's not fair that many people are in jail -- often for misdemeanors -- only because they can't afford to pay the bail. Judges are saying it is also unconstitutional to impose bail without considering defendants' financial ability to pay.

New York

Ruling in People of New York v. Anderson, Judge Maria Rosa of Dutchess County said New York's bail-setting procedure unfairly discriminates against the poor. She said imposing bail without considering a defendant's financial situation violates equal protection under the Constitution.

"While imposing bail under appropriate circumstances clearly serves an important and perhaps even compelling governmental objective, the failure to consider the economic status of a defendant does not serve that interest nor does the consideration of economic status impede that interest," she wrote.

The case arose after Christopher Kunkeli was held on $5,000 bail for nearly three months before he pleaded guilty to a misdemeanor. The ACLU, which filed the constitutional challenge on his behalf, said it will use the ruling to challenge bail around the state.

The point, however, is far more far-reaching.


In California's First District Court of Appeal, judges recognized the same "significant disconnect between the stringent legal protections state and federal appellate courts have required for proceedings that may result in a deprivation of liberty and what actually happens in bail proceedings in our criminal courts."

In Re. Kenneth Humphrey looked at the misfortune of a defendant who was held for his financial inability to post bail. His bail was set at $600,000 for allegedly threatening a 79-year-old man and stealing $7 and a bottle of cologne.

The trial judge later reduced bail to $350,000, but did not consider the defendant's financial ability to pay it. The appeals court said that was wrong and reversed the bail determination.

The panel said the problem is with the bail system. The judiciary, the legislature, and society have "to correct a deformity in our criminal justice system that close observers have long considered a blight on the system change the system," the judges said.

Related Resouces:

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