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The Unconstitutionality of Setting Bail on Those Who Can't Afford it

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.

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