Bail Insurance Companies and the Arnold Foundaton Research

The Arnold Foundation has released some fascinating research using big data-sets to help further pretrial justice. If you want to read about the research, go to:

http://www.arnoldfoundation.org/sites/default/files/pdf/LJAF-Pretrial-CJ-Research-brief_FNL.pdf.

I’m going to talk about only one of the research papers because the commercial bail insurance industry has already misinterpreted it for their own gain.

The Arnold researchers, using some really sophisticated statistical analyses, demonstrated that lower risk (as determined by the current Kentucky pretrial risk instrument) defendants detained for more than 24 hours were more likely to fail to show up for court and to commit new crimes both short and long term. This is an important finding that leads us to try to persuade judges to do everything in their power to release a lower risk defendant once that defendant is deemed safe enough to be managed within the community. Since money tends to detain and to prevent release of bailable defendants, doing things like setting a surety bond will actually increase the risk to public safety and court appearance whenever that type of bond delays or prevents release. And, of course, those types of bonds both delay and prevent release.  

By the way, I recently reported on a study by Dr. Michael Jones showing that there was no difference in public safety or court appearance rates when judges used unsecured (having to pay money only if the defendant fails to appear) versus secured (having to pay money up-front in order to get out of jail) bonds. Thus, these two studies together should guide judges naturally toward using unsecured bonds whenever those judges think that money is an appropriate condition of release. Personally, I don’t think money is ever appropriate, but for those judges having a hard time with that idea, using an unsecured bond at least gets the defendant out of jail quickly – thus avoiding the deleterious effects of short-term detention – and at no cost to public safety or court appearance rates.

I think the bail insurance company lobbyists recognize this important coupling because now they are trying to pick apart the Arnold study. Basically, the bail insurance companies make a lot of money when judges set surety bonds and are content to wait around while defendants take a week or more to come up with the money they need to get out of jail. That is, essentially, one of the biggest problems with a secured bond system administered through commercial sureties: it leads to people taking longer to get out of jail, and some people never get out at all for lack of money. Now it looks like keeping people in jail for even those short periods of time is messing up them and society as a whole. Really, we didn’t need a sophisticated study to tell us that.

The purpose behind limiting someone’s pretrial freedom is court appearance and public safety – not just court appearance as the bail insurance companies say. Moreover, bail never means any kind of “guarantee,” which is what the bail insurance companies appear to be saying as well. The United States Supreme Court has been clear in saying that all we can expect from pretrial release is “reasonable assurance” of any particular outcome, such as public safety or court appearance. There are no guarantees in bail – risk is inherent and, in fact, necessary to our very democracy. Saying that a surety bond is a guarantee of court appearance not only misapprehends the foundations of bail, it is incredibly misleading. In fact, a surety bond doesn’t even give us reasonable assurance.

If I were in the bail insurance business, I would stop trying to pick apart the Arnold study and start trying to figure out how to change my business practices so that defendants deemed safe enough for release would at least get released quickly, even if that meant I might not make as much money. Any delay in releasing a lower-risk bailable defendant is wasteful and ineffective. Now, thanks to the Arnold researchers, we see that it’s also dangerous.  

Nelson Mandela

“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats is highest citizens, but its lowest ones.”

                             Nelson Mandela (1918-2013)   

Bail and Money

Not much time to blog lately, but that’s only because it’s an exciting time for pretrial justice. Jurisdictions around America are seeing the benefits of improving various parts of the pretrial phase based on legal, historical, and empirical research.  And one of the best empirical studies ever has to be this one from Mike Jones over at the Pretrial Justice Institute. Essentially, this study says that secured money doesn’t matter for keeping people safe or for court appearance. I’ve been saying that for a long time, but now Mike has gone and proved it.

Secured money does matter, however, if you want to keep people in jail. No big surprise there – defendants who have secured financial conditions on their bail bonds (either cash or surety) stay in longer and some don’t get out at all. It’s fascinating, too, because the study also shows that a whole bunch of those folks who stay in the entire time end up getting released just as soon as they plead guilty. Too risky to release pretrial, okay once we know they’re guilty. It’s a strange world.  

America ushered in the commercial bail bond system and defendant self-pay laws at the end of the nineteenth century primarily because we had a problem with bailable defendants being unable to find sureties willing to do it for free. Unfortunately, the new commercial system was based primarily on secured bonds, and so we only exacerbated the unnecessary pretrial detention issue.

Whenever commercial bail bondsmen and their big insurance company lobbyists say that we should keep them around because they are good going out and finding folks who have skipped court, these days I just say, “Who cares?” If you take 100 defendants and you whittle them down to that smaller percentage who are actually released on a surety bond and who then skip court, you’re looking at about one or two people. So even if you believe that the bondsmen go out and get those two people (I don’t believe it and I have research to prove it), it’s still no excuse to tolerate a system that essentially keeps about 30 of those 100 defendants locked up for lack of money to pay the secured financial condition.  

For 80 or 90 years we have amassed a great deal of research showing fundamental flaws with the commercial surety system. Now, we’re seeing that the very premise behind the system and any system based on secured bonds – that paying some portion of the money up-front motivates defendants to come to court and stay out of trouble – doesn’t fly.  

Here’s the link to the study: http://www.pretrial.org/download/research/Unsecured%20Bonds,%20The%20As%20Effective%20and%20Most%20Efficient%20Pretrial%20Release%20Option%20-%20Jones%202013.pdf

The Purpose of Bail and Conditions of Bail

Well, the name of this blog is “Bail Basics,” and there’s nothing more basic in the field than the meaning and purpose of bail itself. So basic, in fact, that I’ve spent the last six months tracing the history of bail from England to America to determine its proper meaning and purpose. It’s important to think about, I believe, because I’m starting to see a nasty trend in America concerning this very thing. 

That trend concerns the notion that it’s okay for the government to use bail as a way to “pay for stuff” – from public defenders, to restitution, to costs and fees, to other worthy programs that simply need money. Interestingly, I have seen both commercial bail bondsmen and those of us who can be said to oppose commercial bail bondsmen pulled almost hypnotically toward the idea. I mean, think about it: since there is so much money involved at bail, why not use it to pay for services? And since there is no decent check on the arbitrariness of money at bail (i.e., lawyers rarely object and appeal amounts of financial conditions, and appellate courts rarely overturn them) then we’re looking at a huge pool of money. This pool becomes even bigger if we can just get a judge to say “fifty thousand dollars” instead of “ten thousand dollars” in any given case. And believe me; it’s not all that hard to get a judge to make that jump.

So why not use bail to pay for stuff? Because the meaning and purpose of bail don’t allow it, and having a proper purpose for government action is the first step toward assessing that action under a variety of constitutional theories. Among other things, Stack v. Boyle can be read for the proposition that the government must have a proper purpose to limit pretrial freedom, and ever since that opinion was released in 1951 other courts and scholars have agreed that bail set for an improper purpose is unlawful. This follows from any legal analysis, such as in bail, which requires some sort of a balancing test to determine its propriety. In bail, you’re allowed to limit pretrial freedom, but you must do so only to achieve proper purposes. The ways that you choose to limit freedom must be balanced against your reasons for limiting it in the first place.

Technically, there’s only one proper purpose of bail itself, which is to release people. That’s why bail is correctly defined as a process of release, and why the U.S. Supreme Court has equated the right to bail with the right to freedom before conviction and the right to release before trial. Concomitantly, the purpose of “no bail,” which is also lawful if done correctly, is to detain people.

The constitutionally valid purposes of conditions of bail (and that’s what we’re talking about when we talk about money – a financial condition of bail) are court appearance and public safety. Those are the only two purposes that have been approved by the courts thus far in the history of bail in England and America. Not punishment. Not detention. Not making money. In fact, some states have some pretty big authority for this last prohibition when their courts state explicitly that bail may not be set to “enrich the treasury.” By the way, when we talk about money at bail, the only truly proper purpose is court appearance and not public safety (for a variety of reasons), but that’s the topic of another blog.

The reason that I’m writing about this today is because I saw a recent Indiana newspaper article that reported on a former bail bondsman presenting a plan to the legislature to get judges to use more surety bonds by dividing up the potential forfeitures among a variety of entities, including the court, the public defender, the clerk of court, and even to a school fund. I can’t blame bondsmen for trying this tactic – if they can get everyone to share in the profit of bail, then they might be able to maintain their own hold on the system and continue to profit from it themselves. They are a business, after all, supported by big corporate insurance companies with a fiduciary duty to make money despite whatever erosion to justice that may cause.

But that’s no excuse for people who actually administer bail, and I have seen plenty of those folks succumb to the allure of using money at bail to “pay for stuff.” For example, during its recent fight over whether to re-introduce commercial bail bondsmen to Wisconsin, the state’s judges and court clerks said a commercial bail bond system will interfere with their ability to collect restitution from defendants’ financial conditions of release. Interestingly, it was commercial bail bond industry supporter and ALEC member, Assembly Speaker Vos, who pointedly stated, “The point of bond is never to pay court costs.” He was wrong on everything else he was trying to do surrounding bail in Wisconsin, but he was dead-on about the purpose.

Even in my home state of Colorado, we had a number of well-intentioned folks putting together various bills that included using financial conditions of release to pay for stuff like pretrial services programs. One bill, which would have forced judges to apply even non-forfeited monetary conditions of bail to court costs, etc., was thankfully amended to at least make it non-mandatory.

The reason all of this is important is because money doesn’t do anything at bail except detain people. And as more and more people learn this, they are using money less and less. That’s why the bondsmen are coming up with innovative plans to persuade others to share in the potential profit of a money-based bail system. It’s a last-ditch effort in some areas to retain a money-based system over a risk-based one that instead uses appropriate conditions that actually work to provide reasonable assurance of public safety and court appearance. Unfortunately, if people succumb to the allure of the money, they will only perpetuate a process that history shows is unfair and simply doesn’t work.

  

I think it’s quite simple. If any judge were to set a financial condition on a bail bond and announce on the record, from the bench, that the amount was necessary so that the defendant could help pay for various programs across the state, that bail setting would be declared clearly unlawful on appeal. Of course, judges don’t tend to say those things on the bench, which is why it’s important that we articulate and effectuate the proper and improper purposes of bail so that the improper ones can’t possibly creep in.       

The Great Tim Murray

A blog that I didn’t think I would be writing for a while is this one, which reacts to the announcement that Tim Murray will be retiring from the Pretrial Justice Institute in 2014. If any of you know Tim, you already know that his tenure as the Executive Director at PJI is only one of several incredibly important roles he has played in American criminal justice; indeed, any one of the things he has done in his life would suffice for a full career for anyone else. But what he has done through PJI is nothing short of miraculous. He has taken an American justice system complacent with bad pretrial practices and somehow convinced it to change. Through compassion, intellect, and simple logic, he has shown that the administration of bail is something worth thinking about and worth improving. The whole country is behind him now, which is probably why he feels he can step back.

I’m happy to read that he will still serve in a capacity that will allow me and others to use his wisdom, ideas, and energy. There was a time in this country when the only person running around talking about bail and pretrial justice was Tim. Now thousands of people are running around and talking about all the things that they learned from Tim. I am definitely one of those people. No matter how you look at it, there just aren’t many folks who can say that they moved the criminal justice system a little closer to justice itself. Tim can, and for that I regard him as an American treasure.    

Bail in New Jersey

There seems to be little time to blog lately – so many great advances in pretrial justice across the country that it’s hard to keep up. Here is a video discussing New Jersey’s entry into the revolution. It’s not long, but it shows agreement between both prosecutors and defense attorneys on the need for improvement. In passing, they reference the need to change New Jersey’s constitutional provisions dealing with the right to bail so as to further best practices. This is not uncommon – many states are realizing that these constitutional provisions, which we often feel are unassailable, must be changed in order to fully effectuate a legal and evidence-based “bail” – “no bail” dichotomy that results in the appropriate placement of defendants pretrial. If it does it right, New Jersey will allow for the transparent detention of high risk defendants while allowing the release of lower risk ones, all without the need for money and its unhealthy tendency to sort things based on wealth.

Happy watching!

http://watch.njtvonline.org/video/2365050072.  

Bail and One's Right to It

A Transcendent Pretrial Decision

It’s an issue that simply does not come up that often: “When a state constitution says that there is no right to bail if someone commits murder or treason “when proof is evident, or the presumption strong,” who must carry that burden – the defendant or the prosecution? Indeed, in a well-regarded treatise on criminal procedure, the issue warrants only two lines of text and nary a footnote. Nevertheless, in an opinion dated June 25, 2013 (Fry v. Indiana, No. 09S00-1205-CR-361), the Indiana Supreme Court not only decided the case correctly, it did so with an opinion that transcends the legal issue, providing a glimpse into the sort of knowledgeable court decisions we might soon expect in this latest generation of American bail reform.

The holding is simple: for one hundred fifty years in Indiana, defendants facing either murder or treason charges have been required to first show that proof is not evident, or the presumption is not strong to be entitled to bail. Now, wrote the Court, “we hold that  . . . the burden lies with the State to show that ‘proof is evident, or the presumption strong.’” The Court’s rationale is strong and sound, and based on a number of well-reasoned factors, such as an inherent unfairness attaching to a somewhat inscrutable requirement that the accused, “saying there is and should be no evidence, should go into the wide world in search of that which he says does not and should not exist.” Indeed, the Court wrote, given that a primary benefit of bail is that it permits the unhampered preparation of a defense, requiring an incarcerated defendant to “disprove the State’s case pre-trial in order to earn the right to be unhampered by incarceration as he prepares to disprove the State’s case at trial” is a “backwards process” with “no valid justification.”

But despite the narrow issue, the opinion is exceptional for three reasons. First, it includes frequent and forceful references to the presumption of innocence (e.g., “we find the contrary procedure used in the past to be incompatible with the fundamental guarantee presuming an accused’s innocence until proven guilty beyond a reasonable doubt;” it “flies in the face of the principle that the presumption of innocence abides in the accused for all purposes while awaiting trial.”) Such statements are appropriate retorts to those who have recently attempted to downplay the presumption of innocence at bail, often for political reasons or monetary gain.

Second, when faced with the prosecution’s argument that the burden should not be changed because “defendants have carried this burden in Indiana since 1866,” the Court bluntly wrote: “For one thing, ‘because that’s the way we’ve always done it’ is a poor excuse – the merits of stare decisis notwithstanding – for continuing to do something wrong.” Across America, criminal justice decision-makers are being faced with strong arguments to improve bail practices. In some cases, those practices have spanned 100 or more years and have loyal adherents who oppose improvements simply because “that’s the way we’ve always done it.” Those decision-makers should be heartened by a state supreme court willing to confront the argument using little more than common sense.

Third and finally, in deciding the more detailed parameters of the burden of proof, the Court intentionally noted (state supreme courts do nothing casually) a recent policy paper from the Conference of State Court Administrators, which advocates revisions to bail laws that support risk-based over money-based practices, promote nonfinancial release options, and reduce reliance on bail schedules in favor of more evidence-based risk assessment. The Indiana Supreme Court wrote: “To attain greater success at incentivizing appearance at trial, enhancing public safety, reducing costs of pre-trial custodial detention, and achieving greater economic equity and fairness in the availability of release from pretrial detention, there is growing interest and exploration of pre-trial release programs based on evidence-based practices as an alternative to monetary-based bail. Our opinion today should not be read to limit the availability of such practices in Indiana.”

There are numerous bail practices that are simply wrong and backward and that require remedy. As the Indiana Supreme Court noted, sometimes these practices are 150 years old, and locked into place not only by custom and habit, but also by such bedrock legal principles as stare decisis. The Indiana Supreme Court’s opinion, however, provides encouragement that remedies are nonetheless possible. The opinion should be a wakeup call to those who believe the courts will not engage in the struggle for pretrial justice. And to those currently in that struggle, the opinion should bolster their resolve by providing a courageous and knowledgeable example of incremental pretrial reform.       

Restorative Pretrial Justice

In a recent Aspen Daily News Story, Man’s Felony Dismissed After Participation in Innovative Judicial Approach, found at http://www.aspendailynews.com/section/home/158703, the paper tells of a man charged with extortion of a Latino couple after a car accident. The “innovative approach” is called restorative justice (or sometimes reparative justice) and has actually been around since the mid to late 1970’s. It’s based on a novel concept of addressing the needs of the victim, the community at large, and the defendant to address wrongs as an alternative to the traditional legal system that focuses on offender punishment and abstract legal responsibility, with victim and community considerations often receiving nothing more than lip service. Restorative justice looks at who has been harmed in a given situation, and sets out to restore those persons to a place before the harm took place.

What makes it “innovative,” I suppose, is the fact that prosecutors rarely get elected employing the practice; a lot of them still believe (incorrectly) that the public is fixated on punishing wrongdoers at the expense of nearly everything else, and so restorative justice is rather slow to catch on. Nevertheless, this story provides hope that certain enlightened prosecutors (or at least one of them) are willing to give it a try.

Moreover, there is beginning to emerge some pretty decent research showing that restorative justice has positive effects. In one meta-analysis of restorative justice research (the highest quality of “evidence” in an evidence-based decision making model), Latimer, Dowden, and Muise (2005) reported the following:

“Despite some methodological limitations, the results provided notable support for the effectiveness of these programs in increasing offender/victim satisfaction and restitution compliance, and decreasing offender recidivism.”

Of course, one of the main “limitations” is what’s called “self-selection bias,” due to the fact that the restorative justice process is, by its nature, a voluntary one. Random assignment of offenders to control and treatment groups will almost always undermine the foundations of the process.

Nevertheless, the restorative justice hypothesis has enormous potential based simply on logic and fairness, which is why I applaud the prosecutors in Aspen, D.A. Sherry Caloia and Deputy D.A. Andrea Bryan, for deciding to try it out. For too long we have thought that our adversarial court process has been the best process for righting wrongs. We are taught the adversarial process in our law schools and we praise it in our college civics classes. But for those of us who have been in its trenches, we have seen that the process needs a bit of work. Restorative justice, at least, gives us an alternative.     

Colorado's New Bail Law

In case anyone is wondering, here's a fairly detailed paper explaining Colorado’s new bail law. It’s not necessarily the best law, or a model law, but it’s a heck of a lot better than the one we had before!

http://www.clebp.org/images/2013-07-03_New_Colorado_Bail_Law.pdf. 

Happy reading! 

Bail Bond Trends

The corporate bail insurance lobbyists recently testified to Colorado’s Senate Judiciary Committee that a there was a national trend toward using for-profit bondsmen and cited to Wisconsin as proof. The problem is that Wisconsin has once again decided that bondsmen should play no part in its justice system.

Instead, the trend that I see (and that others should note) is that the corporate bail insurance company lobbyists will do virtually anything in their power to increase profits, including slipping an enabling provision into a state budget bill in the middle of the night, and then hoping it will go through so that they can mislead other states about their industry.

Nobody in Wisconsin, save a couple of good friends of ALEC and a few oily characters who like to use ALEC as their personal platform, wanted bondsmen back in. And fortunately for Wisconsin, the Governor listened.

Good for you, Wisconsin!  See you soon! 

Criminal Justice, Redemption, and Empathy

Here’s a story about criminal justice, redemption, and empathy. The title is, “In America, Criminal Justice System Needs Redemption More Than the Prisoners.”

http://www.alternet.org/belief/america-criminal-justice-system-needs-redemption-more-prisoners

It tells the story of a prosecutor who slowly began seeing how his Christian worldview conflicted with how he was treating the least among us by traveling down the traditional criminal justice path of mass incarceration in the name of justice. Really, it’s a story about empathy, because anyone who can truly empathize with a criminal defendant cannot help but see the person who is capable of a better life, and who should be forgiven and extended a community’s helping hand at living in society. This prosecutor came to a sort of epiphany when he actually entered into a prison and started teaching college classes to inmates. According to the prosecutor, Preston Shipp, interacting with these inmates caused him some degree of cognitive dissonance:

When the only information you receive about a person is the worst thing they’ve ever done, it’s very easy to regard them as less human. How can I reconcile the job I was asked to do as a prosecutor with my faith in Jesus, who came proclaiming release for prisoners?

How indeed? In this case, he couldn’t, and so he quit his job as prosecutor and now advocates for criminal justice reform. The article talks about a documentary you can watch describing his redemptive transformation.

So what does this have to do with bail? Well, apart from the idea that judges and lawyers would benefit from the occasional trip inside the jail or prison they send people to, I have seen a great lack of empathy in the criminal justice system for pretrial defendants. This lack of empathy is likely expected. At a typical bail hearing, there is often only a charge and the police affidavit along with a criminal history to guide everyone. These documents tend overwhelmingly to cast the defendants as bad people who did bad things. Still, these people are human, just like you and me, and if we saw even a little bit of ourselves in them, we might not be so quick to lock them up or otherwise make their lives miserable before their trials.  

Don’t get me wrong. I care immensely about victims of crime. On more than one occasion I’ve been the victim of a crime, and I have close relatives who have been victims of violent crimes. But I think that empathy allows us to care about both victims and the people who stand accused.   

I’ll quit preaching now, but I have to say that I don’t think I would even need to be working at bail reform if everyone showed just a little more empathy. 

Confused About What Bounty Hunters Actually Do?

Here's a story written by a “fugitive recovery agent.” http://www.aboutbail.com/articles/1453/bail-bonds-enforcement-agents-media-portrayal-and-the-perfect-world

We used to call them bounty hunters, but I think I like the term “agent” better because it sounds fancy and makes you feel like you're gambling in Morocco. He says he’s setting the record straight about what these agents actually do because people are confused.

Frankly, I don’t think I’m all that confused. This next story, http://www.newschannel9.com/news/top-stories/stories/bondsmen-arrested-shooting-trenton-man-5494.shtml, is pretty clear about what these two “fugitive recovery agents” in Florida actually did: they chased a guy, got into a scuffle with a dog, shot the guy, and got arrested for aggravated assault (the defendant was only facing charges for disorderly conduct, by the way).

The more stories I read about people trying to correct misconceptions about what they do, the more I think that they aren’t really misconceptions, you know?

    

Bail, Insurance Companies, Politicians, and Greed

In the story, "Bail Bond Bill Will Create Debtor’s Prisons,” by Bruce Murphy, he asks, “Why are Republicans pushing a bill opposed almost unanimously by criminal justice professionals?”

http://urbanmilwaukee.com/2013/05/21/murphys-law-bail-bond-bill-will-create-debtors-prisons/

Why, indeed? But Wisconsin is not alone. Across America, big insurance company lobbyists are pushing bills designed to increase their profit – criminal justice be damned – by backing bills to insert for-profit bail into the system, or to limit judges in using methods of release that don’t involve sending business the insurance companies' way. In a quote from District Attorney John Chisholm in the article, “The return of commercial bail bonds, will primarily benefit out-of-state interests, the large bail-bond corporations” motivated “purely by financial interests” at the expense of public safety. 

Oh good. Let’s pass it.

But it’s worse than that. I believe that the bail insurance companies want back into Wisconsin just so they can say that it represents a “national trend” toward using for-profit bail. In fact, I was recently at a Senate hearing in another state where the bail lobbyists said that very thing. Never mind that virtually no one in criminal justice, from police to judges, feels that for-profit bail has any meaningful value. Never mind that the bail industry tried to get into Wisconsin before, and failed. Wisconsin is just being used to further the interests of the big bail insurance companies. They have the money, and thus they have access to politicians who, strangely, will pass criminal justice laws that the whole criminal justice system opposes.  

There was a guy at the Senate hearing who said that he teaches on “best practices” at bail. Unfortunately, he is paid quite well to say that for-profit bail is a best practice. He is wrong, of course, and hopefully Wisconsin will rally together to keep this corporate interest out of criminal justice. Believe me, once they are in Wisconsin, the state will see a barrage of new laws each year designed to continue increasing the bail industry profits. It will see a new regulatory bureaucracy necessary to watch over the “problem child” of regulated occupations. Finally, and most unfortunately, it will see unnecessary pretrial detention of those who simply cannot afford to pay the bondsmen’s fee.

Scholars have openly condemned the for-profit bail industry practically since its inception. Wisconsin should be proud to know that it was famously enlightened when it abolished the practice in the 70’s.

Read the story. It shows how ALEC, the various bail insurance companies, and a few lobbyists are using Wisconsin as a pawn in their American bail strategy – just so they can make a buck.   

"Low" Money Bonds and Unnecessary Pretrial Incarceration

Here is part of a jail study recently done by my friend, Marie VanNostrand of Luminosity, for New Jersey:

As stated previously, nearly three-fourths of the jail popu­lation had a primary custody status of pretrial (Superior and Municipal Courts). A closer examination of those in­mates reveals that just over 5,000 inmates, or 38.5% of the total population, had an option to post bail but were held in custody solely due to their inability to meet the terms of bail. This means that the inmates were not serving a sentence, had no holds or detainers, and could have been released if they were able to post bail in the form of cash, cash/bond, 10% option or support arrears. Table 11 contains the bail amount ranges by bail post op­tion for inmates who were held on bail only. When con­sidering the 10% Deposit Option and the Cash or Bond Option, which allows for payment of approximately 10% to a private surety, there were approximately 800 inma­tes held in custody who could have secured their release for $500 or less. Considering the same circumstances, an additional 259 inmates could have secured their release for between $501 and $1,000 and an additional 489 inma­tes could have secured their release for between $1,001 and $2500. When these groups are combined, there were 1,547 inmates (12% of the entire population) who were held in custody due to an inability to pay $2500 or less.

Prior to studies like this we would say, using logic, that there were people in jail who couldn’t get out because they couldn’t raise the money. If you can imagine, there were people – like bail industry lobbyists and certain uninformed criminal justice types – who simply didn’t believe it. When pressed, they sometimes even said that if there were such defendants, most of them were probably choosing to stay in jail for some reason or other.

In Jefferson County, Colorado, we set out to test that assumption by going cell to cell and asking defendants who had not posted bail why they had not posted bail. We asked everyone, and then we separated out the ones with holds, those serving sentences, etc. Like New Jersey, we found that 60% of those defendants who had not been released on bail within 48 hours were still in custody because they couldn’t post the amount. And yes, we did find some that some didn’t want to post it for one reason or another (like hoping to get time-served), but only about 7%  (who weren’t counted in the 60%, by the way). Then we did another study later on where we found, like they found in New Jersey, that about 100 “minimum security” inmates in the Jefferson County Jail had bail amounts of $500 or less, and another 100 had bond amounts between $500 and $1,000. The bottom line is that if they were to look into it, virtually all jails situated in jurisdictions wedded to a money bail system will find some percentage of defendants incarcerated unnecessarily. And if they were to look into the amounts keeping these defendants in jail, I think they would be surprised at how low those amounts may seem to be – especially to people, like judges and attorneys, who probably think that $500 is no big thing.       

But my point is this. In bail, there are certain basic assumptions that we would like to be able to make concerning defendant behavior, such as the fact that most defendants would rather not stay in jail versus being free before their trials. Unfortunately, those who profit off of the old system will deny virtually everything, forcing people like me and Marie to go out and prove it.  

High Money Bail and Prediction

In a recent story out of Aspen, we have what the headline reads as a “huge bond reduction,” leaving everyone scratching their heads why.

The article states: 

“In a bizarre twist Tuesday, a local man accused of a brutal attack on his former girlfriend had his bond reduced from $400,000 to $2,500.

“Peter Nardi, 50, who lives on Highway 82 near Smith Hill Way, was expected to be released from jail Tuesday afternoon, said his attorney, Arnold Mordkin of Snowmass Village.

“Chief Deputy District Attorney Andrea Bryan was mum on why she agreed to the vast reduction. She told Judge Gail Nichols of Pitkin County District Court that she did not want to state her reason for agreeing to the lower amount for fear of jeopardizing an “extensive, ongoing investigation.”

“But Bryan said the same felony charges remain pending against Nardi, a former restaurateur in Snowmass Village.

The only thing everyone does know, it seems, is that $400,000 kept the defendant in jail, but $2,500 allowed him out. Which begs the question – did the judge mean for him to be initially detained pretrial? If so, the first high bond amount raises constitutional issues not only concerning the judge’s reason (setting bail to detain in a right-to-bail state like Colorado is constitutionally suspect) as well as to its excessiveness under the 8^th Amendment to the U.S. Constitution.  The judge apparently mentioned the factual allegations as a basis for the initial amount, but the problem with basing financial conditions of bond on the charge or the allegations is that it starts to resemble punishment for something the government has yet to prove.    

Given that the only two constitutionally permissible reasons for limiting pretrial freedom are public safety and court appearance, it would have been nice if the judge had said something about them. More specifically, given that no amount of money in Colorado can be forfeited due to breaches in public safety, it would have been nice and actually more appropriate for the judge to explain exactly how the money was necessary to address risk of flight. That’s really the only reason why you should use money in Colorado. Money has nothing to do with public safety. It can’t be forfeited for new crimes or other breaches in public safety. And the research shows that money doesn’t make anyone safer. Using money to make people safe when it doesn’t work and you can’t even forfeit it for new crimes is irrational, which means it’s probably unlawful no matter which constitution you are looking at.   

In the story, the defense attorney said, “It’s clear to me that there was something that was originally [in the investigation] that is no longer there – I assume it is something to do with the woman’s story and that something significant has changed.” So what could have changed in the woman’s story that would have altered the defendant’s risk for flight when the charge remains the same? Nothing, most likely, even though that’s how bail is supposed to work. One of the toughest applications of the presumption of innocence at bail is for judges to note the charge and an affidavit (usually a sad tale of events that always supports the charge), but to look beyond those things to evaluate the only two constitutionally valid reasons for limiting pretrial freedom.

And here’s the kicker: Colorado has recently developed an empirical risk assessment instrument designed to determine which factors actually predict pretrial failure based on these two constitutional reasons. In the past, present charge and affidavit would have guided most decisions, as it perhaps still did in this Aspen case. But guess what factors are actually predictive of pretrial failure? There are twelve: (1) having a home or cell phone; (2) owning or renting one’s residence; (3) contributing to residential payments, (4) past or current problems with alcohol; (5) past or current mental health treatment; (6) age at first arrest; (7) past jail sentence; (8) past prison sentence; (9) having active warrants; (10) having other pending cases; (11) currently on supervision; (12) history of revoked bond or supervision. That’s right, no “current charge at arrest” or “what the police said he did in the affidavit so that a judge can find probable cause.” Not having the current charge as predictive of pretrial failure is so counterintuitive to our current thinking that that someone actually told the State Crime Commission recently to add it to the assessment tool, “even though it would make the tool less predictive.” Of course, the group decided not to do so. Adding a non-predictive element, no matter how logical it may seem, to a predictive tool to make us feel better would be no different than adding “type of shoes worn at arrest.” It would be worthless and irrational.      

Looking at this case from a distance, time will tell if this defendant was the sort of person who was so likely to flee that only $400,000 (an amount virtually assuring his detention) was the only solution. If not, then there must have been some other reason for the initial high financial condition. Let’s hope it wasn’t just some judge’s subjective opinion about the seriousness of the charge. That’s not on the predictive list. 

Bail, Pretrial Justice, and Money

 Bail, Pretrial Justice, and Money

This is a recent entry from a blog sponsored by the Bozeman (Montana) Daily Chronicle. At the end of this blog, I’ll give you the rest of the story and tell you how the motion panned out, Paul Harvey style.  

County attorney wants accused Taco Bell shooter's bail increased

Whitney Bermes, Chronicle Staff Writer
Posted: Jan. 25, 2013 10:40 a.m.

Gallatin County Attorney Marty Lambert thinks the bail for a man accused of a shooting at Taco Bell is too low. So he wants it increased fivefold.

Nathaniel John Budd, 22, was arrested Dec. 1 after police allege he shot a woman twice in the Taco Bell parking lot following an argument.

Budd was held in the Gallatin County jail on $100,000 bond. He was released on Jan. 7. 

In a motion filed Jan. 22, Lambert asked District Court Judge Holly Brown to increase that bond to $500,000.

You can see the rest of the story at: http://www.bozemandailychronicle.com/blogs/beyond_the_blotter/article_63d75144-6716-11e2-9689-0019bb2963f4.html. 

It illustrates three common points of misunderstanding in the administration of bail, which deal with (1) constitutionally valid purposes of conditions on pretrial release, (2) money and public safety, and (2) the arbitrariness of money bail.

The story reveals that the defendant had been arrested about a year before with a 45 caliber revolver. When he was ordered to give up his weapons after this recent arrest, however, he did not surrender any revolver. Moreover, police found other rifle ammunition in his car that didn’t match any of the rifles that he surrendered. Clearly, authorities believe that he is holding out on surrendering his full collection of weapons. Accordingly, the county attorney wants the monetary condition of release raised from $100,000 to $500,000.

The first question that must always be asked in conditions (including financial conditions) at bail cases is “why.” In other words, what is the constitutionally valid rationale for seeking an increase in the amount as a limitation on pretrial freedom?  Bail must have a valid purpose, and these days the only purposes constitutionally recognized as valid are risk to public safety and for failure to appear for court. If the defendant actually breached one of his bail conditions (nobody has said he has, yet, they only believe it to be so) then Montana can certainly revoke the bond under its existing statutes. And clearly, if anyone dared to say that the increase was in some way punishment for their belief that the defendant lied to authorities and didn’t surrender his weapons, then that would be a clear violation of the constitution. Nobody has said anything about the defendant being a risk for flight – after all, he is already out on bond and is apparently watching all this from relatively close sidelines.

Which leaves us with public safety. Obviously, if everyone believes the defendant has access to weapons, then prosecutors might make a pretty good argument for why they feel more restrictive conditions of release might help to further public safety, a constitutionally valid purpose for limiting freedom. The problem is that money bail, in Montana as in most other states, cannot be forfeited for breaches in public safety. It can only be forfeited for failure to appear. Right now, the defendant is out on a $100,000 bond. If he commits another crime tomorrow, that amount will not be forfeited. If it is raised to $500,000, and he commits a new crime, that amount will not be forfeited. It is only lost if he does not return to court at the proper time. You can thank the commercial bail bond industry for this fairly common part of nearly every state’s bail law.

Accordingly, legally speaking, money has nothing to do with keeping anyone safe. But what does the research say? Well, it turns out that loss of money has never been demonstrated in any way to protect the public either. One only has to look at the headlines to see that crimes are committed by individuals on all types of release, including those secured with high amounts of money. Maurice Clemmons killed four police officers while out on a fairly high money bond. Others have done the same thing while out on much less. Beyond the headlines, however, are numerous social science studies attempting to find a link between public safety and money, but there is none. That is why the national best-practice standards on pretrial release say that courts should never – I said never – set financial conditions of bail in order to protect the public.

In fact, the only way that money could protect the public is if a court were to set it so high that the defendant could never post it at all. Sidestepping the fairly serious constitutional questions surrounding this practice – a practice that has been questioned, if not condemned by scholars in this country for over five decades, the fact is that if the $500,000 bond is a commercial surety bond, then there’s always a pretty decent chance that the defendant will be released. That’s because even though everyone believes that bail bondsmen charge ten percent on every bond they write, often they lower that percentage. Indeed, I have seen instances of bondsmen helping a defendant to get out of jail with no money down and on an installment plan to eventually pay the fee. And remember, if the defendant commits a new crime while he is out, nobody is out any money anyway.   

At some point, all of this raises the very important issue of the arbitrariness of money. I mean, why did the attorney ask for $500,000 and not $1 million? Why not $10 million? In my humble opinion, the arbitrariness of money bail will be its ultimate downfall. Arbitrariness in setting nonfinancial conditions at bail typically stems from finding no rational reason for connecting the conditions to individual defendants. Financial conditions suffer also from arbitrariness by degree; even if a judge may be able to articulate why he or she feels that money generally is an appropriate condition of release for a particular defendant, that judge typically is unable to explain why one amount has been chosen over any other.

So in the end, you have a requested increase of money that might not be tied to any constitutionally valid purpose for limiting pretrial freedom. Moreover, even if it is based on public safety concerns, the request is also potentially irrational because it money is not legally, empirically, or even logically tied to public safety. And, unless there is some good reason for one amount over another (or even for the initial amount, for that matter) you have a request that is also arbitrary. In appellate work, irrational and arbitrary actions by government officials are typically deemed unlawful under multiple theories of law.

There are solutions to this dilemma, which I will write about in future posts. Until then, it should be enough that we at least fully understand what we are doing. If we can’t act rationally and non-arbitrarily in these big, high profile cases, how can we possibly do so with the vast majority of bail cases, in which hundreds of dollars can mean the difference between pretrial freedom and jail?

And now . . .  the rest of the story. The judge denied the request because prosecutors didn’t provide any proof the defendant still had any firearms. Oh well, not everything is exciting.  Good day.

Bail, Pretrial Justice, and Federal Detention

The U.S. Department of Justice just issued its “Pretrial Detention and Misconduct in Federal District Courts, 1995-2010,” and it points to an alarming increase of federal pretrial detention – from 59% of defendants in 1995 to 76% of federal defendants in 2010. This number is a bit misleading, simply because defendants can be (1) detained for some part of the pretrial phase, (2) detained for the duration of the pretrial phase, or (3) never detained. As to the extremes, this report indicates that defendants never detained declined from 41% to 24%, while the number detained for the duration of the case increased from 42% to 64%. The trend seems clear; fewer people released and more people detained.

The report also suggests that an explosive immigration caseload has been a primary contributor to the increase in detention – a huge increase in immigration defendants with cases in federal courts (664%) contributing 60% of the overall increase in detention, despite the fact that detention rates for immigration cases did not rise nearly as much.    

Of course, immigration cases pose some of the biggest dilemmas for persons interested in bail and pretrial justice. These defendants are only accused of crimes, and they are allowed the benefits of the constitutional rights that every American enjoys; however, I have never seen an immigration case that did not somewhat inherently raise the issue of the risk of failure to appear for court. Perhaps this accounts for the fact that nearly 65% of federal defendants detained pretrial in 2010 had no prior arrest history. In a typical non-immigration case, no prior arrest history often means some form of pretrial release.    

Despite this possibly inherent flight-risk conundrum, I have seen numerous cases with immigration defendants who would seemingly pose little or no risk to public safety or failure to appear for court when measured by any objective pretrial risk instrument. It is interesting to me that ICE itself allows defendants to bond out of ICE custody for immigration proceedings, apparently for all the reasons the courts have articulated for any other non-immigration case.

In the past few years, federal officials have recognized the rising federal detention rate and have begun working on evidence-based methods to increase releases without sacrificing public safety or court appearances. This may account for the fact that federal pretrial detention actually peaked in 2008 and is now slowly declining. And, by the way, the court appearance rate for those defendants actually released has risen from 97% to 99% in the last fifteen years, and the public safety rate (no new arrests for felonies or misdemeanors while on bond) has stayed right around 98%, too. Misconduct based on technical violations has increased, but that's a topic for another day. 

Remember the words of conservative Justice William Rehnquist, writing for the Court in United States v. Salerno: “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”  You can decide for yourself if a 76% detention rate is what the Chief Justice had in mind.

The full report is here: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=4595.           

Conference of Chief Justices Endorses Bail Reform

The Conference of Chief Justices, made up of the highest judicial officers in the fifty states, the District of Columbia, and the various United States territories, has officially endorsed bail reform and pretrial justice in America. Specifically, it “commends and endorses” the Conference of State Court Administrators’ policy paper on pretrial release, and it joins with that group “to urge that court leaders promote, collaborate, and accomplish the adoption of evidence-based assessment of risk in setting pretrial release conditions and advocate for the presumptive use of non-financial release conditions to the greatest degree consistent with evidence-based assessment of flight risk and threat to public safety and to victims of crimes.”

The Conference of Chief Justices is a pretty important group, and its policy is clearly at odds with that of the commercial surety industry, which advocates for presumptive release on financial conditions. This new policy was a catalyst for Judge Lippman's call for an examination and overhaul of New York’s bail laws, and it will undoubtedly nudge judicial officials in other states to do the same.

You can read the resolutions here:

http://www.pretrial.org/OurServices/Advocacy/AdvocacyDocuments/CCJ%20Resolution%20on%20Pretrial.pdf. 

Bail Bondsmen Response to Proposed NY Reform

Here is a typical statement by commercial bail bondsmen when it comes to rational measures toward bail reform. “Catastrophic.” Really? Four states have completely eliminated bondsmen, and I don’t read about any catastrophes there. Washington DC does not use commercial bail bondsmen, and its pretrial court appearance rates and public safety rates are high.     

 

Notice that bondsmen say that “they bring important benefits for society,” but they give no specifics on what, exactly, those benefits are. Perhaps the answer lies in the first statement: “We strive for personal profit.”

 

So there you go. We all benefit from bondsmen striving to make more money. I’m sure if, given the time, there might be some macro-economic rationale equating personal profit with some yet-to-be defined societal benefits, but maybe not. Maybe, instead, we have been right as a nation that for 100 years has called for removing profit from bail. Since America has allowed persons to profit off of the misfortunes of defendants, we have become a nation with a pretrial detention rate that is three times the world average.  

 

 

WNYC News

Bondsmen Pan Bail Overhaul Plan

Wednesday, February 06, 2013

By Ilya Marritz

A proposal by New York's top judge to make big changes to the bail bonds system for criminal defendants is getting bad reviews from the bail industry.

Chief Judge Jonathan Lippman said in his annual State of the Judiciary speech Tuesday that judges should order supervised monitoring for nonviolent offenders, when possible. And when bail is required, Lippman wants not-for-profits to replace for profit lenders.

George Zouvelos, president of the New York Professional Bail Bondsmen and Agents, said his members will fight the proposals.

“We strive for personal profit,” Zouvelos said. “The professional bail bondsman brings important benefits for society. Changing the effective system of the status quo would be not only a mistake but catastrophic.”

Zouvelos said criminal defendants are often treated badly in the overburdened courts system, but the bail bonds industry is not the problem.

He also denied Lippman’s claim that the bail bonds industry fails to meet the needs of low-income New Yorkers who are unable to meet even low bail requirements.

“I do $1,000 bonds and $750 bonds by the ton,” Zouvelos said.

There are thought to be about 70 active bail bondsmen in the state.

New York Bail Reform

When the Chief Judge of an entire state says that changes need to be made, it makes big news. New York has always had the problem of not explicitly addressing public safety, but what is most encouraging is that Judge Lippman is also talking about the other side of the bail coin – the unnecessary pretrial detention of low risk defendants who simply lack the funds to get out of jail.

The whole New York Times story is at the link – I only reprinted a couple of excerpts.

http://www.nytimes.com/2013/02/06/nyregion/judge-jonathan-lippman-seeks-to-overhaul-bail-process.html?_r=0.  

Top Judge Says Bail in New York Isn’t Safe or Fair

By RUSS BUETTNER

Published: February 5, 2013

Castigating the bail process in New York as unfair to the poor and susceptible to allowing dangerous suspects to be set free, the state’s top judge called on Tuesday for an overhaul of the bail system that would bring the state closer in line with the rest of the country.

In his annual State of the Judiciary speech in Albany, the chief judge, Jonathan Lippman, said New York was one of only four states that did not allow judges to consider public safety when making a bail determination. The main criterion used by judges is the risk of the defendant’s not returning to court for trial.

“As a result, defendants may be put back on the street with insufficient regard to public safety, with possibly catastrophic consequences,” he said. “Few, if any, would seriously argue that judges should not consider the safety and well-being of people on our streets or in our homes when making bail decisions.

“This makes no sense and certainly does not serve the best interests of our communities and our citizens.”

Conversely, Judge Lippman said the bail system was stacked against those accused of minor crimes, keeping them in jail at great personal hardship and weakening their resolve in plea negotiations. The judge called that outcome “unfair” and said it “strips our justice system of its credibility.”

Judge Lippman’s proposal is in line with trends across the country to overhaul bail so that it is based more on an analysis of the risk that defendants pose to public safety, rather than their financial well-being. The United States Conference of Chief Justices, of which Judge Lippman is a member, last week adopted a resolution with similar goals.

Bail Transparency, Part II.

Here is a case in point for the need for judges to make a clear record at a bail hearing.

http://news.yahoo.com/blogs/sideshow/giggling-woman-flips-judge-bird-judge-not-amused-210739814.html.

The young lady in this video was rude and may have even deserved her sentence for contempt of court (although I've come to believe that government officials should wear an extra thick skin when they are allowed to wield so much power). The problem is that the judge, apparently angry over her flippant attitude and possibly racist remark, first summarily doubled the financial condition of her bail from $5,000 to $10,000. Was it because the judge read some new information indicating a higher risk of flight, or was it because he was angry and wanted to punish her? It matters because increasing a monetary condition due to increased risk of flight is okay, but setting bail to punish a defendant is unconstitutional.  This is the sort of thing that goes on in courtrooms every day, and the public rarely gets to see how loosely judges sometimes act when it comes to money at bail.    

Richard III and the Right to Bail

No time for much of a blog this week, but today I noticed a number of newspapers reporting on someone finding the bones of Richard III of England. Unfortunately, many of those articles also say that Richard III introduced a right to bail in England. That’s not true, as explained in the following well-researched post.

http://www.susanhigginbotham.com/blog/posts/richard-iii-and-bail/. 

Cheers! 

Bail, Money, and Transparency

The New Hampshire Union Leader posted the following article:

$100,000 bail after Milford officers assaulted

      ShareThis

By NANCY BEAN FOSTER
Union Leader Correspondent

MILFORD - A domestic disturbance that allegedly turned into an assault on two police officers has landed 20-year-old Vando Gvorzdarevic behind bars, and he'll remain there on $100,000 cash bail.

According to Capt. Chris Nervik of the Milford Police Department, officers responded to the report of a domestic disturbance at an apartment at 93 West Street on Jan. 18. When they arrived, the officers learned that Vando Gvorzdarevic had allegedly punched his brother in the face and had assaulted his mother.

But when the officers tried to take Gvorzdarevic into custody, a struggle ensued. During the altercation, according to court documents, Gvorzdarevic punched Officer Nathan Stone in the face and chest and elbowed Officer Mike Dowd in the chin, and pushed both officers.

Nervik then said Gvorzdarevic fled the scene, running south on West Street before the officers were able to apprehend him.

Gvorzdarevic is facing eight counts of simple assault, a Class A misdemeanor, including five charges for assaulting the police officers and three for assaulting his family members, according to court documents.

He also faces one count of resisting arrest and one count of criminal misconduct for punching a hole in a wall in the apartment, court documents said

The article raises a couple of common issues at bail. The main issue deals with the judge’s rationale for setting the monetary condition of release. The article doesn’t say why the judge set the amount at $100,000 cash-only, an amount that seems prohibitive to most folks. Typically, judges don’t make a complete record when they set bail; that’s because if they do, they can get into some trouble on appeal. For example, if this amount was set expressly to detain the defendant, then the bail would be unlawful as being set for an invalid purpose. Likewise, if the judge expressed his or her opinion that the defendant “deserved a high bail amount” because of what he or she did, the bail-setting would likely be deemed as one done for punishment, an equally impermissible rationale. If the judge said that the amount was solely due to his or her concerns over public safety – a constitutionally permissible purpose for limiting pretrial freedom – then that judge runs the risk of lawyers on appeal arguing the decision is irrational (due to the lack of any empirical evidence linking money to public safety) and arbitrary (due to the judge’s inability to explain why that amount, and no other, is necessary to keep the public safe.) In New Hampshire, I also think you can only forfeit the money amount when a defendant fails to appear for court and not when he or she commits a new crime, which makes setting the amount for public safety purposes all the more irrational and thus without reason. 

But let’s say the amount was expressly set because the judge believed that $100,000 was the amount, and not a penny more, that would provide reasonable assurance of court appearance (the relatively high cash amount based, I suppose, on the fact that the defendant ran from the police, thus indicating a tendency to flee, or because he’s a millionaire who scoffs at smaller sums). This argument would be practically unassailable on appeal, and at least logical because under the New Hampshire statute a defendant stands to lose whatever money he posts if he doesn’t show up for court.

Either way, valid rationale or not, we still have to wait. Only after a few weeks of incarceration will we start to realize that the defendant is still detained. Is this what the judge intended when he or she actually ordered the defendant’s release under certain conditions? Now that the judge knows the defendant can’t get out, does this fact show intent to further detain? Without a record, we really won’t know.

It’s precisely this sort of bail setting that has gone on for years, with judges setting unattainable money conditions that ultimately lead to de-facto pretrial detention and likely without a fully developed record from which to base an appeal. And it’s a common occurrence in states, like New Hampshire, which have constitutional bail provisions that theoretically permit pretrial detention, but which also have a statute that does not allow detention for the particular case the judge is seeing. By setting an insurmountable bail amount, the judge will have essentially denied bail altogether, for a case not included as “non-bailable” in the state statute, and in contravention of the opinion in United States v. Salerno, in which the U.S. Supreme Court upheld the federal pretrial detention scheme only when certain procedural due process safeguards were in place. It’s a practice that has been discussed and criticized for years – a practice that led to legislatures creating preventive detention laws in the first place.

Indeed, it’s a practice that has also led to an unfortunate line of cases that now hold defendants have no constitutional right to bail that they can afford. These cases were initially decided out of necessity, when money bail was the only option judges had, and when (as now) a high number of pretrial defendants were detained for lack of money. A rationale of those cases focuses on the fear that given such a right, defendants will feign indigence to wriggle out of paying the monetary condition. The problem with this rationale is twofold: first, it ignores advances made in the field of pretrial justice, which have shown that jurisdictions can effectuate and maximize releases at little cost to court appearance and public safety rates by reducing their reliance on money bail. Second, it presupposes an unlikely scenario that there is some number of pretrial defendants in jail who are not indigent, who don’t want to pay the money, and who are willing to remain in jail even though they can afford to get out.

Nevertheless, these cases merely leave us to argue excessiveness, which many courts loosely define as “reasonable” looking primarily at the judge’s subjective beliefs. Unfortunately, using traditional Excessive Bail Clause analyses has led nationally to pretrial jail populations hovering at 61%, with 88% of those defendants detained because they cannot afford the monetary condition. A de-facto detention rate this high is certainly in contravention of the Supreme Court’s admonition that pretrial liberty be “the norm” and pretrial detention be “the carefully limited exception.” This must change, and the change can come from how we argue excessiveness: if a money amount is arbitrary and irrational (as most are) can it ever be deemed reasonable?        

If the defendant in this case is so risky for flight or future dangerousness that he cannot be released pretrial, then he is exactly the sort of person who should be detained. Right now, New Hampshire’s constitution does not preclude the creation of a decent preventive detention statute that is based primarily on risk instead of charge. Such a statute would allow judges to deny bond openly, perhaps even for certain misdemeanor cases, when it is shown that the defendant is too high risk to be released. Only then will the State be able to ask its judges to quit using money as a surrogate for transparent detention.     

I know, people will think that because I wasn’t in the courtroom I can’t possibly see that these issues were really a part of this case. But I have watched thousands of bail hearings, and I have seen certain trends that definitely inform my opinions. America needs better bail statutes. America needs better adherence to fundamental legal principles and evidence-based practices. And America needs courts that give explicit reasons for decisions that result in pretrial detention.