Cash Bail Under Fire In New York

Charlotte Criminal Lawyer Brad Smith answers the question: “If I have an outstanding warrant, what should I do?”


We have discussed bail before. Specifically, we have discussed the ways in which the current bail system in place in many states is designed in such a way that disadvantages the poor and minority communities. The bail system allows those with money or access to money to avoid incarceration, while punishing those without financial resources by remaining behind bars. Many argue bail is even worse than simply inequitable, it reinforces and even exacerbates financial disparities in the criminal justice system. When a poor person is not able to make bail, he or she will then spend weeks or months behind bars awaiting trial. During this time he or she will likely become unemployed and create substantial hardship for the family left behind, making it even harder to reintegrate as a productive member of society.


Handcuffs-close-up-Charlotte-Criminal-Lawyer-Lake-Norman-Criminal-Attorney-300x225For a long time now, the issues presented by the bail system have been apparent to some. Critics of the criminal justice system, advocates for the poor and minorities, civil rights groups, and others have called for change. In a surprising decision, a sitting judge added her voice to the chorus calling for change. That judge, Maria G. Rosa of the State Supreme Court in Dutchess County, NY issued a ruling calling into question the state’s cash bail system, highlighting its many failings and potentially setting a precedent for other judges to follow.


The ruling concerned Christopher Kunkeli, a mechanic from Poughkeepsie. Christopher was arrested back in October 2017 and charged with stealing a vacuum from a nearby big box store. The judge in the town ordered bail be set at $5,000, without bothering to determine whether the amount was in line with what Christopher could afford to pay. The problem is that the defendant only earned about $10,000 a year, meaning that bail was totally out of reach. As a result, he remained behind bars for months awaiting the conclusion of his court case.


Sadly, Christopher’s story is not a rarity. Judge Rosa made this exact point in her ruling. She noted that more than 60 percent of inmates in New York’s jails are not there because of a criminal sentence. They are there waiting on trial. In some parts of the state, including New York City, the number is even higher, a whopping 75 percent are stuck waiting, while wealthier defendants are home enjoying their freedom.


Judge Rosa noted that the state’s law leads to inequality because it appears to cause harm to people based solely on their financial circumstances. Rather than considering a person’s financial situation before setting bail, ensuring that bar is proportionate to the offender, bail is set by judges without all the facts. This means that bail is almost always set far too high for ordinary people to afford, leaving them stranded behind bars for weeks or months while their families fall even further behind financially. Judge Rosa concludes that this unequal treatment presents a constitutional problem, violating guarantees of equal protection and due process.


The decision by Judge Rosa is the first in New York to note the constitutional problems of a cash bail system. Courts in other states, like Texas and California, have come to similar conclusions, arguing that poor defendants should not be disadvantaged in the criminal justice system. This includes not only bail, but also things like payment of fines, court costs and judgments requiring restitution.


Though Judge Rosa did not strike down New York’s bail law as unconstitutional, merely mentioning that it presents problems, she did set the stage for other judges to follow her lead. As the first judge in New York to issue an opinion noting the flaws in the state’s system, many hope that other judges will reach similar conclusions. The message a ruling like this sends throughout the judicial system is important and many believe it signals that a change may be in the wings. For now, we will have to wait and see if this decision is the first of many or simply a fluke.


If you or someone you know has been charged with a crime, please contact the experienced criminal defense attorneys at Arnold & Smith, PLLC. Our attorneys stand at the ready to defend you against state or federal charges. Please contact Arnold & Smith, PLLC today at (704) 370-2828   or find additional resources here.






The criminal defense attorneys at Arnold & Smith, PLLC make it their mission to zealously defend their clients on a wide range of criminal matters at both the state and federal levels. These matters may include any charge from traffic offenses; DWI/DUI; drug charges (from simple possession to possession with intent to distribute and trafficking); gun permit denials; weapons offenses; and property crimes (larceny, breaking and entering, robbery, fraud, embezzlement, white collar offenses); to sexually related offenses (indecent exposure; sexual assault, crimes against nature, removal from sex offender registry); and violent crimes (domestic violence; assault; manslaughter; homicide, murder). Other legal issues that Arnold & Smith, PLLC criminal clients may be facing include restraining orders, restraining order and probation violations, expungements; appeals; and immigration issues related to criminal charges. Our criminal defense attorneys are passionate about ensuring that individuals empower themselves by being informed about their constitutional rights, and stand at the ready to fight in the defense of those facing criminal charges.



Image Credit:



See Our Related Video from our YouTube channel:



See Our Related Blog Posts:

How Does Bail Work In A North Carolina Criminal Case?

Major Push Underway To Reform Bail System


Contact Information