Tuesday, January 29, 2013

Bail, Money, and Transparency

The New Hampshire Union Leader posted the following article:

$100,000 bail after Milford officers assaulted
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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. 

Monday, January 21, 2013

Bail, Martin Luther King, Jr., and Pretrial Justice

I suppose it's fitting that I would post my first blog about bail and pretrial justice on the holiday to honor Dr. Martin Luther King, Jr. That's because, in many ways, the pretrial justice reform movement of this century is akin to the civil rights movement of the 20th Century, with committed individuals urging cultural changes to a system manifested by disparate state laws, unlawful practices, and uniformed officials pursuing policies that negatively affect basic human rights. That era, too, had its success stories -- model jurisdictions -- that people could look to for guidance leading toward a nation of justice for all people, including the most vulnerable among us.

During the mid 20th Century, many people credited Dr. King with creating those models by traveling to assist and support individual jurisdictions as crises would erupt. Naturally, people began to equate Dr. King with the proverbial Good Samaritan, who stopped to help a single traveler who was robbed and beaten on the Road to Jericho. To this comparison, he reportedly replied as follows to his friend and fellow civil rights leader, Andrew Young:

"I think the Good Samaritan is a great individual. I, of course, like and respect the Good Samaritan . . . but I don't want to be a Good Samaritan. You see . . . I am tired of picking up people along the Jericho Road. I am tired of seeing people battered and bruised and bloody, injured and jumped on, along the Jericho Roads of life. This road is dangerous. I don't want to pick up anyone else, along this Jericho Road; I want to fix . . . the Jericho Road. I want to pave the Jericho Road, add street lights to the Jericho Road; make the Jericho Road safe (for passage) by everybody." 

Like the ancient road to Jericho, the road to pretrial justice is in need of a global fix. It's not enough that we see one jurisdiction here, one there, doing good work to make the administration of bail more legal, rational, transparent, and fair. We need big projects -- national and state-wide in scope -- to fix the the problems associated with bail that have plagued America since even before its founding. 

In 1951, Judge Learned Hand stated, "If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice." He said it when speaking about poverty and legal aid, but the quote took on a new life in the first generation of bail reform in the 1960s. It's quite simple -- the traditional system of using money at bail makes it so only those with means can obtain pretrial freedom, a right that each of us holds in the vast majority of cases. Money bail rations justice so that only the rich receive it. This is wrong, and if Dr. King were here today, I think he would agree.