When the Appellate Division, Second Department, referred the Article 70 proceeding to Dutchess County Supreme Court Justice Maria Rosa, they made an excellent choice. Justice Rosa had already proven herself an exceptionally bold and tough judge, willing to confront systemic problems in the system head on. And bail? One of the worst.
The NYCLU argued that failure of judges setting bail to consider a defendant’s ability to pay was a violation of the Equal Protection and Due Process Clauses. It’s not that judges were prohibited from considering ability to pay, but they weren’t required to do so by statute. And most didn’t.
While it is clear that the legislature must act, it is undisputed that the earliest such action could occur would be 2019. In the interim, thousands of individuals will be in a similar situation as the petitioner was at his arraignment. It is clear to this court that a lack of consideration of a defendant’s ability to pay the bail being set at an arraignment is a violation of the equal protection and due process clause of the Fourteenth Amendment and of the New York State Constitution: Clearly, $5000.00 bail to someone earning $10,000.00 per year, like the petitioner, without significant assets, is much more of an impediment to freedom than $5000.00 bail would be to a defendant earning substantially more and/or with significant assets. Setting that sum as to both such individuals would not be equal treatment.
As can happen, the petitioner in the case copped a plea in midstream, but Justice Rosa properly rejected the mootness argument.
The court considered the matter as an action for declaratory judgment in that case, and this court finds it appropriate to do so here. See also Hearst Corp. v. Clyne, 50 NY2d 707 (1980) where the Court of Appeals outlined a three prong test for recognition of an exception to mootness when (1) the case raises a substantial or novel issue, (2) that has a “likelihood of repetition, either between the parties or among other members of the public”, (3) and yet, because of the fleeting nature of the dispute, the issue will typically evade judicial review.
This is a critical detail that allows a court to deal with huge systemic problems that impact an enormous number of defendants, but easily evade review because they’re “fleeting.” So even though the petitioner pleaded guilty, and no longer needed remedy, the case proceeded as a declaratory judgment action.
And Justice Rosa came down on it.
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. Therefore, applying any of the above tests, the failure to consider a defendant’s financial situation when imposing bail violates that defendant’s right to equal protection under the United States and New York State Constitutions.
Significantly, Justice Rosa’s ruling was grounded in the rational basis test, rather than strict scrutiny, as indigency is not a “suspect classification” for equal protection analysis. The distinction almost always dictates the outcome, as strict scrutiny is an extremely high burden, while rational basis is usually a government throwaway test. With a little rhetorical effort, almost any rule can be twisted into serving a rational governmental purpose.
Not this time. There was simply no justification, not even a little bit, for ignoring a defendant’s ability to pay bail when holding a presumptively innocent person in jail.
Protection against discrimination is never more important than when a person’s freedom is at stake. Since one accused of a crime in the United States is presumed innocent until proven guilty, the setting of bail is supposed to be limited to those defendants who are either a danger to a specific individual* or to the public or who pose a flight risk. There are conflicting allegations as to Mr. Kunkeli’s work and living situations and his record of prior court appearances. This court is not ruling upon whether or not it was appropriate for Judge Sullivan to set bail in this case, or even to have knowingly set bail the defendant could not afford, but only as to the propriety of the failure to consider whether Mr. Kunkeli had the ability to pay the sum of bail set.
But if you read closely, you realize that practical roadblocks stand in the way. At initial arraignment, the judge has little to go on about the defendant’s actual financial conditions. If his CJA forms show he’s unemployed, then it may well be that he’s indigent. Except when the charge is drug dealing, when it will be argued that he’s hardly unemployed or indigent. Or if he’s got an iPhone on him at the time of arrest. If he can afford a fancy toy, he can afford bail.
The contentions in the trenches put a judge in a difficult position, as it’s all talk and no proof. Saying a defendant is broke doesn’t make him broke. And indeed, if he’s got private counsel, that could be seen as a deal breaker, even if his family’s last dime was spent retaining a lawyer, as is their right.
While Justice Rosa’s ruling, that the Constitution requires judges to consider a defendant’s ability to pay when setting bail, is a significant step forward, and sufficiently sound to hold up on appeal, whether it will have a material impact in the trenches will have to be seen. For some defendants who are employed and can prove they make poverty level wages, this could prove to be a viable way out. Provided, of course, that judges can do that math and recognize that half a year’s salary is a bit steep for a turnstyle jumper.
Still, this ruling fails to confront the core problem, that bail is imposed for the asking for cases where there is no substantive justification for bail at all. And judges can fix that problem any time they want. Any time at all.
*Note that the New York bail statute does not include a “danger to the community prong.”