I remember early in my career as a public defender I appeared in night
court during the arraignment shift. The purpose of arraignments in New
York State Criminal Court was for a defendant to be informed of his charges
and the judge to make a bail determination – or in other words,
hold a bail hearing. Most Judges would set bail irrespective of a defendant’s
means to post that bail. But I recall one Judge in particular that asked
me the same question every time I stood before him representing a defendant:
“Mr. Brill, how much can bail can your client make?” At the
time, I thought it was a strange question, and certainly unlike the way
other judges conducted the arraignment. Now, after all of these years,
it makes sense. That judge understood that bail should not be punitive,
but merely serve as a way to assure the defendant’s return to court.
Instead of arbitrarily setting a bail amount, this Judge set bail commensurate
with what the defendant could practically make – which achieves
the same purpose, which is set up assurances that the defendant will return
to court. This week the DOJ has finally come around.
After a discussion among their committee, the DOJ announced that it is
unconstitutional to jail a defendant who cannot afford to post bail. In
other words, if bail is going to be fair for those who are poor, it cannot
be set at an amount that they have no ability to post. This is logical,
fair and compassionate. It is about time an agency like the DOJ realized
that there are too many defendants who are charged with minor crimes who
are in jail – and remain in jail - solely because they do not have
the means to come up with the bail that is set by the judge.
What does this mean? For one thing it means that a poor defendant does
not have to live their life in jail while they await the resolution of
their minor, non-violent crimes. Here in New York that scenario occurs
far too many times. It also means that the justice system is beginning
to treat a poor defendant the same way it treats a wealthy one when both
are charged with similar crimes. This trend will also do wonders to lessen
the overcrowding that is so prevalent is local jails, which, in turn,
will cut down on prisoner abuse and injury, which is also prevalent.
If you've been charged with a crime it's imperative that you seek
legal counsel immediately,
contact us today to learn how we can assist.