Praising the call for bail reform
Advocates welcome changes offered by Cuomo, but Ulster DA says they’re mostly needed downstate
KINGSTON, N.Y. » While most people spent the holidays with loved ones, Christopher Kunkeli spent Thanksgiving and Christmas alone and behind bars at Dutchess County Jail.
The 32-year-old mechanic was sent to jail in October, after being charged with misdemeanor petit larceny for allegedly stealing a vacuum cleaner from a town of Poughkeepsie Target store.
Kunkeli was sent to jail by Poughkeepsie Town Justice Paul Sullivan on $5,000 bail — an amount, according to the New York Civil Liberties Union, that was nearly half his $12,000-peryear salary. Unable to post bail, Kunkeli remained in jail throughout the pendency of his case. He ultimately pleaded guilty to petit larceny and was sentenced earlier this month to five months in jail. He is scheduled to be released from jail on Jan. 19.
Now the New York Civil Liberties Union is suing Sheriff Adrian “Butch” Anderson, claiming Kunkeli’s pretrial detention violated his rights under the U.S. and state constitutions, and asking the courts to rule that judges must take into consideration a person’s
ability to pay when setting bail.
“We should simply not be placing someone in jail just because of their poverty,” said Philip Desgranges, a senior staff attorney with the New York Civil Liberties Union. “The purpose of bail is to make sure they return.
“There are better ways to make sure somebody comes back to court,” he said.
The idea that too many people languish in jail for minor offenses simply because they are unable to post bail is a central theme in a package of proposed criminal justice reforms Gov. Andrew Cuomo announced during his State of the State address.
Saying that “freedom before trial” must be the rule, rather than the exception, Cuomo said the existing system places an unfair burden on the poor.
“The blunt, ugly reality is that too often, if you can make bail you are set free, and if you are too poor to make bail you are punished,” Cuomo said. “We must reform our bail system so a person is only held if a judge finds either a significant flight risk or a real threat to public safety.”
He called for the elimination of monetary bail for misdemeanor and nonviolent felony offenders, saying those people should instead be released either on their own recognizance or with nonmonetary conditions imposed by the court, such as reporting to a pretrial services agency.
For people charged with a violent felony, both monetary and nonmonetary bail would be allowed, but only after a judge conducted a review of the case and the individual’s personal and financial circumstances.
Ulster County District Attorney Holley Carnright called the idea that a person charged with a misdemeanor should never be put in jail in lieu of cash bail “ludicrous.”
He conceded that there is a need for bail reform in New York City, but, he said, “that doesn’t mean we throw away the system.”
“There’s a big difference in the criminal justice system in a rural area than in an urban area. These reforms don’t address that. These sweeping reforms are, in my judgment, not in the best interest of the people I represent,” he said.
Carnright said that in Ulster County, the majority of those arrested on misdemeanor charges or violations are issued appearance tickets or are released on their own recognizance after being arraigned. In cases where bail is set, he said, other considerations are at play, including the needs of the accused and the victims.
Capt. Michael McGirr, the assistant warden at Ulster County Jail, said that on Jan. 4, there were 170 inmates in the county jail awaiting sentencing. Some of those people, he said, were awaiting adjudication of their cases, while others had been convicted and were awaiting sentencing. McGirr said he didn’t know how many of them were charged with misdemeanors or violations.
He also couldn’t provide a breakdown of bail amounts, but said that the amount of bail set on inmates in jail on bail at the time ranged from $250 to $25,000.
According to a study conducted by the New York Civil Liberties Union in preparation for its lawsuit, 60 percent of pretrial detainees between 2010-2017 were in jail in lieu of bail on misdemeanor charges, while 3 percent were in jail on bail for violations.
Also during that period, 1,039 people were sent to jail on bail of $500 or less and 2,040 to jail on bail of $1,000.
“A lot of judges set what we’re calling nominal or token bail, just because they think some bail is appropriate,” said Ulster County Public Defender Andrew Kossover.
“It’s very common to see $250 bail set or $500 bail set. Most people would raise that nominal amount within a day or two, but that day or two can still have severe consequences for a family, particularly if the incarcerated is the breadwinner and is working at a minimum wage job.
“Some people, can’t even raise that,” he said.
Kossover, the legislative chair and immediate past president of the New York Association of Criminal Defense Lawyers, said studies have shown that posting bail has little effect on whether an accused returns to court and have shown the harm incarceration can have.
He lauded Cuomo for finally taking on an issue Kossover said has long plagued the criminal justice system.
Michael Pollok, a private defense lawyer who practices locally and in New York City, said he has seen instances in which people who may have been innocent agreed to plead guilty simply to get out of jail.
“It’s coercive and it creates rap sheets,” he said.
“Many times, I will stand next to a client and say ‘I can’t recommend you plead guilty because you are not, but if you want to accept the deal and go home’ ... what are people going to do?”
“Very few people are willing to stand on principal,” Kossover said.
These are better ways to make sure somebody comes back to court,” agreed Desgranges.
Pollok, though, said bail is a necessary tool, particularly in the urban areas, to make sure a defendant returns to court.
Deputy Dutchess County Executive William O’Neil said Dutchess County prides itself on its alternatives to incarceration program and has taken numerous steps to make sure that people who can be released from jail are.
He said the county now has public defenders on call around the clock to represent individuals at all arraignments, and probation officers go to the county jail every day to meet with the newly incarcerated to determine whether he or she would be a good candidate for release either on their own recognizance or to one of the county’s alternative to incarceration programs.
“I think we do a pretty good job in Dutchess County,” said O’Neil. “We do pretty well getting people out who shouldn’t be in jail awaiting the disposition of their cases.”
He admitted, though, that it is ultimately up to a judge to decide whether to set bail, and said there times when an accused person who the Probation Department thinks can be released on an alternative plan spends weeks in jail awaiting a next court date before they are released.
O’Neil took exception to the New York Civil Liberties Union’s portrayal of Kunkeli as someone the system has failed.
He said Kunkeli has a long history of petty criminal offenses, a fact confirmed by the Desgranges, who said that in 2015 and again in 2016 Kunkeli failed to show up for a court date.
“In his entire history, he’s had two failures to appear, and (for) one of them he may have been incarcerated at the time,” said Desgranges.
Desgranges said that although his organization is “encouraged” by Cuomo’s proposal, he said those who are in jail on bail for low level crimes can’t wait for Albany to act.
“While it’s great that Albany is now talking about this issue, there have been bail proposals in the past, In 2001, Judge (Jonathan) Lippman put on proposals that went nowhere,” he said.
“I do not have a problem with the direction the governor is going in terms of proposing reforms to the bail system,” said state Sen. John Bonacic, R-Mount Hope. He said, thought he would like local district attorneys and judges to be on board with any changes made.
State Sen. George Amedore said he is awaiting details of the proposed changes, but expressed concern about “a very progressive approach,” that would allow people to slip through the cracks and escape paying for their crimes.
“Let’s hear the details of the governor’s proposal and really see what he’s trying to do here,” said Amedore, R-Rotterdam.
State Assemblyman Kevin Cahill, D-Kingston, did not return a telephone call for comment on the governor’s proposal.