New York Ends Cash Bail for Misdemeanors, Non-Violent Felonies

New York Criminal Defense Attorney Explains the Law

Video Transcript:

David Jason Cohen: 

Justice is supposed to be blind. Economics is not supposed to play a role in how you are treated in the criminal justice system.

Tom Mustin: 

Did New York City really end cash bail, what does that even mean, and what effect has it had? We're gonna talk to Attorney David Jason Cohen about that on today's Ask the Lawyer. Dave, thanks for joining us.

David Jason Cohen: 

I'm glad to be here, Tom. Thank you for having me.

Tom Mustin: 

Well, David, in 2019 New York State ended cash bail for most cases involving misdemeanors and non-violent felonies, can you explain to us what cash bail is and why the State did this?

David Jason Cohen: 

Sure. Cash bail is when the accused or the accused's family is required to actually pay money, to pay cash, to the court in order to have the accused released. If you fail to pay the cash bail then the accused, despite having the presumption of innocence, must remain incarcerated pending the outcome of the case, which could be months and sometimes even more than a year. The reason they did it was because there was a lot of disparity, and the research has shown that low income people and people at the poverty level tend to spend many, many, many more months in jail awaiting trial than those who had means, it was a way to make the system more equitable.

Tom Mustin: 

Yeah. And I gotta ask you. Yeah. Is it fair to impose cash bail on someone who can't afford to pay it? That's the big question, right?

David Jason Cohen: 

Oh right. I'm sorry Tom, no. Absolutely not. Well, you could see I'm chomping at the bit, because the moment those words came out of your mouth... It's not fair at all, and the reason it's not fair is the symbol for justice is the blind... The blindfold over the eyes, justice is supposed to be blind. Economics is not supposed to play a role in how you are treated in the criminal justice system. However, in these circumstances, there were people who did not have money, where someone who did have money would of have had the ability to fight the case from the outside, which is a huge advantage. So it was completely unfair that those who did not have the economic means, it was not only unfair to them, but it was contrary to the system that we have in play here in New York and across the country, quite honestly.

Tom Mustin: 

So really a constitutional issue in your opinion there.

David Jason Cohen: 

There is a constitutional component too, for sure, there's the due process in equal protection clauses of the 14th amendment, there's the eighth amendment problem with the prohibition against having excessive bail, and then there's arguably a sixth amendment problem with the right to speedy trial. So constitutional as well as just sense of fairness, all militate in favor of getting rid of the cash bail.

Tom Mustin: 

A lot of people have noticed increase in crime in New York city, could that be because of the cash bail issue now?

David Jason Cohen: 

The studies have shown, and from having represented thousands of people myself, that there is absolutely no correlation. It's not cash bail that has increased the uptick of crimes here in New York City, there is a lot of other arguments and a lot of things that seem to make a lot more sense to me. First of all, there's the pandemic, there's poverty-related issues, and you'll see across the country mass shootings have gone up, violent crimes throughout the country have gone up where they have not changed the cash bail system. So I think it has a lot to do with the way that we are in society right now and what's going on, you can't rule out the pandemic, you can't rule out all the divisiveness that's happening in politics, so I don't believe that the cash bail, nor have I seen any data that supports the notion that is the getting rid of certain portions of cash bail that has caused the uptick in crime.

Tom Mustin: 

So David, walk us through what happens if someone's arrested and they have an upcoming bail hearing.

David Jason Cohen: 

When you're arrested here in New York, within 24 hours you're supposed to be brought in front of a judge and the judge assesses whether you are eligible or whether your case or your charges are bail eligible. If they're bail eligible, the judge has the right but does not have to set bail on you. If you are arrested in New York, first you should call Cohen Forman Barone, our criminal lawyers can help you with it. In order to be prepared to go to a bail hearing, you want to stack the courtroom with family and friends, people who could vouch for you and can tell the court that you would return. You wanna bring proof of your employment, you wanna bring proof of education, if you're in school, you wanna be able to show the judge that you are quote unquote, the type of person who would return to court if given the opportunity to be released and out in society, where you belong.

Tom Mustin: 

Well, great information David, we really appreciate you joining us today.

David Jason Cohen: 

Thank you for having me, Tom.

Tom Mustin: 

And that's gonna do it for this episode of Ask the Lawyer. My guest has been David Jason Cohen. If you wanna ask David a question about your situation, call the number you see on the screen. Thanks for watching. I'm Tom Mustin, for Ask the Lawyers.

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