While a landmark Georgia case has now set the standard for bail, one New York-based law firm is applauding the Empire State’s readiness to address the injustice of cash bails.

The Manhattan firm of Watford Jackson, PLLC, said innocent until proven guilty can feel like a sham when thousands of accused but non-convicted defendants languish in New York jails for lack of a few hundred dollars to make bail.

Shockingly, lawyers at the firm noted that 72 percent of people arrested in New York City end up at the notorious Rikers Island jail for at least a day because they cannot raise the necessary cash bail fast enough, even for a misdemeanor crime such as drug possession or assault.

However, the state of New York does appear to be ready to address this injustice in 2019.

A task force created by the New York State Unified Court System spent over a year discussing the issue and published its final report in February 2019.

The report largely agrees with the latest drafts of bail reform legislation coming out of Albany.

The likely changes include:

  • More offenses should be designated for police issuance of an appearance ticket rather than an arrest.

  • People accused of misdemeanor and some non-violent felony crimes should be released without cash bail, either on their own recognizance or with the least restrictive non-monetary conditions necessary to ensure their appearance in court.

  • However, courts should be able to deny release if the defendant currently poses a credible threat to the physical safety of an identifiable person or group.

  • State law should specify a limited list of crimes for which a defendant may be held in pre-trial custody, if the prosecutor makes a case for it.

  • Judges’ use of electronic monitoring in place of jail detention should be subject to specific guidelines set out in state law.

New York City has already taken action over the past four years to reduce its jail population rather than wait for state-level reform.

The city now offers a program known as “supervised release,” a partnership with nonprofit groups that will help evaluate defendants and allow social workers to maintain contact with assigned defendants, the attorneys at Watford Jackson noted.

Of the first 10,000 people who qualified for supervised release, 87 percent attended all of their court dates.

Other bail reforms instituted by NYC include the elimination of jail sentences of less than 30 days; expansion of the bail expediters program; and creation of an online website that family members can use to pay bail as soon as a defendant has been arraigned.

Watford Jackson’s report comes as the U.S. Supreme Court on Monday, April 1, refused to review a decision in the Eleventh Circuit Court of Appeals case of Maurice Walker v. Calhoun, Georgia.

The high court’s refusal to hear the landmark case of Walker v. Calhoun, Georgia, means the August 2018 decision of the U.S. Court of Appeals for the Eleventh Circuit stands, which ruled that money bail and bail schedules is constitutional.

The Petitioner, Maurice Walker spent six days in jail on a pre-set bail of $160 that he was unable to make before a judge would see him. According to the SCOTUSblog,petition’s central issues were whether heightened scrutiny under the 14th Amendment applies to a government policy that keeps misdemeanor and traffic-offense arrestees in jail pretrial solely because they are poor; and (2) whether the government can keep misdemeanor and traffic-offense arrestees in jail for up to 48 hours after arrest solely because they are poor when it has offered no reason for doing so.

The petition concerned the use of what are commonly referred to as “monetary bail schedules,” where bail amounts are pre-determined, based upon specific offences. The practice allows later adjustment once a defendant appears before a judge.

In Walker’s case, he was jailed because he could not afford to pay $168 in traffic fines and had no means of communicating with a family member to obtain the funds. Leading the position that he, and others in their situation, are jailed simply because they are poor.

The petition questioned whether conducting arbitrary individual reviews of bails set by a schedule within 48 hours meets constitutional muster or instead discriminates against the poor, according to the American Bail Coalition.

The Eleventh Circuit Court of Appeals upheld, on a 2-1 decision, the use of monetary bail schedules. As a result of the suit, the city of Calhoun created a new standing order on bail.

It allowed for the use of schedules but required defendants to be heard by a judge within 48 hours, in which they could request a reduction in bail or be released on their own recognizance.

“The Supreme Court today sent a very strong message that monetary bail and bail schedules are constitutional if the proper due process procedures are followed,” Jeff Clayton, Executive Director of the American Bail Coalition, said in a statement.

“It has a been a long, hard and expensive road to get here,” Clayton said.

In denying to hear the Petition (denial of cert), the Supreme Court has also affirmed that rational basis review is the appropriate standard for reviewing claims of wealth-based discrimination under the equal protection clause. “This is contrary to the ruling of two federal district judges who decided to apply intermediate scrutiny and strict scrutiny,” Clayton said.

The denial of cert is considered a milestone victory for constitutional law and the commercial bail industry. “Then-U.S. Attorney General Eric Holder first filed a statement of interest in Varden v. City of Clanton in 2015, arguing against the use of bail schedules,” Clayton added.

“Since that time, we have been waiting for a signal from the U.S. Supreme Court as to whether the use of money bail schedules is constitutional. Today, we can say without hesitation, we know their answer,” he said.