Indiana and the Purpose of Bail

I just read a bail insurance company's take on bail in Indiana, which is worth a quick comment. In the insurance company's post, the writer opines that the purpose of bail is to guarantee that a defendant comes back to court. Then, interestingly, the same fellow laments that by using what we call a "ten-percent-option," which allows defendants to post ten percent of the financial condition of his or her bond to the court, rather than to a bondsman, the Indiana judges are taking money away from that state's "Common School Fund." Apparently, making the defendants pay money for release in ways other than the ten percent method directly subsidizes this fund.

This raises an important question -- just what is the purpose of bail? Is it court appearance or is it to finance the Common School Fund? The answer is neither one.

What we know as bail today was created in England in the Middle Ages, and when it was created, the purpose of bail was to avoid blood feuds between family clans. This remained the primary purpose of bail right up until the Normans changed everything by making the criminal process more of a public process, with crimes of royal concern (like today having criminal actions brought by the state), presentment juries, itinerant justices, and jails. Ever since, the purpose of bail has been exactly what logic would tell you it is when jails are involved: to release people. Bail is a process of release, and its purpose is to release people pretrial, just as "no bail" is a process of detention, and its purpose is to detain people pretrial. The insurance fellow in question is getting a condition of bail or release confused with bail itself. In America pretrial release is always conditional (with at least one condition being to come back to court or the bond might be revoked) and placing those conditions on a defendant's freedom may only be done to provide reasonable assurance of public safety or court appearance.

So the purpose of bail itself is to release people, and the purpose of conditioning that release on something is to provide reasonable assurance of one of the two constitutionally valid purposes of court appearance or public safety. When bail insurance people say that the purpose of bail is court appearance only, they are making that statement from their particular business angle. Bail bondsmen and the insurance companies simply do not have anything to do with public safety -- universally across America you can't even forfeit money on a bail bond for a new crime, and so for this and other reasons money simply does not protect the public. In fact, a defendant who continually commits crimes but never misses court is actually considered to be a pretty good customer to the commercial bail industry. Additionally, bail bondsmen will typically skip talking about release rates or any other notion of releasing people -- universally across America bondsmen and insurance companies reserve the right to deny helping any defendant to gain his or her release for any reason, or for no reason whatsoever.

If we know the purpose of bail (which is to release people) and the constitutionally valid purposes of conditions of release (which are either court appearance or public safety) then we know, too, that any other purpose for conditioning release is likely an invalid purpose. That's why nearly every state has articulated through case law various invalid purposes, and one of the most common is setting bail to "enrich the treasury," or something like that. It's pretty simple, really, if you can only condition release to protect the public or to assure court appearance, then conditioning release to pay for things is an invalid purpose. I doubt that the Indiana courts have said that a legitimate purpose for conditioning someone's pretrial freedom is to help pay for things, but if they have then it would be a complete aberration to what other courts have said across America. And even if it's not unlawful under Indiana law, one of these days someone will run a case up the federal side that will set everyone straight.

The way to look at the purpose of bail is to think of only three things -- release, court appearance, and public safety. Any other reason for setting a bail bond, whether expressly or not, is likely an invalid purpose. That's why you can't set bail to punish people (another clearly unconstitutional purpose) or to detain people, especially when avoiding the lawfully enacted detention process in any particular state. It's like setting bail to impress your friends. Invalid. And under nearly every big theory of law applicable to bail, whether that theory be due process, excessive bail, or equal protection, the government has to first articulate a proper purpose for its action.

If you don't believe me about all of this, go find an Indiana judge and get him or her to expressly state on the record that he or she is setting a particular amount of a financial condition in order to help pay for various state services. Run that decision up the appellate ladder -- both state and federal -- and see what happens.

I cover all of this in more depth in my Fundamentals of Bail paper, which you can find on my website. Oh, and I just noticed that I already talked about the same basic thing in a blog from 9-23-13. Obviously, the purpose of bail and setting bail for invalid purposes is one of those "bail basics" that I intend to revisit more than once.

Ferguson

Talking about Ferguson today isn't that big of a stretch for a guy specializing in bail reform. After all, a broad definition of bail as well as the concept of pretrial justice includes an officer's decision to release or detain, and, without even talking about the contact that initiated this whole thing, a whole bunch of people probably got detained in the last couple of days and nights after finding out that the Grand Jury wouldn't indict.

But I write today as someone who used to work in all areas of the criminal justice system, and who used to try to find answers to questions arising from all decision points. That and other experience in the system causes me to write very briefly about what must now be done: a complete examination of our criminal justice system and the methods we have created, nurtured, and perhaps taken for granted over the last century, and with that examination done by a body of people who didn't create this mess to begin with.

In a recent Time Magazine, Joe Klein explains how a certain type of police training -- one that was opposed by many people embedded in the current system -- could have entirely prevented the original shooting in Ferguson. My own experience with police training has illustrated to me that some communities will never experience the tensions underlying relationships in Ferguson because of the more progressive ways they hire and train officers, but try telling that to certain police agencies who have been training the same way (or in increasingly aggressive ways) for decades. I have seen first-hand abuses with the grand jury system, but getting a sitting prosecutor to recognize that abuse -- or even the clear appearance of abuse -- is nearly impossible.

And then there's bail. I've spent eight years now talking about how unfair it is to lock people up before their trials based on how much money they have, but criminal justice officials seem content with the whole thing. I once knew an elected prosecutor who repeatedly talked about how many years of experience he had in the justice system, but when it came to improving that system he was adamantly opposed. When the jail was full, he said that a full jail wasn't his problem. When we talked about pretrial justice, he said he didn't think anything was wrong. When we mentioned research, he actually said that he didn't believe in research. His experience, it turned out, was basically in screwing things up. For decades. And guess what? When the time came to create a group of experts to look at bail reform in Colorado, they put him on (well, he kind of forced his way on, but that's another story).

We need complete reform, and we can only accomplish that reform by intentionally leaving out many of the people responsible for the current broken system. It shouldn't be too hard to realize that a "blue ribbon commission," which is designed to stop current abuses, but which is comprised of those persons who tolerated those abuses for decades, is not the answer.

The other day I had an older gentleman who had been involved in criminal justice for decades try to argue with me about what he saw were the benefits of secured money bail -- the one thing that we know keeps people in jail unnecessarily due to their inability to produce it. The same day I heard from a twenty-something legislative aide who had decided simply to take secured money bail completely out of the state statute. The difference? If the first guy didn't actually cause some of the problems that we have today, he certainly tolerated them, or maybe even worse, didn't recognize them at all. The young aide had a clean slate.

Ferguson started with a human tragedy -- the death of Michael Brown -- and I am praying for Michael, his family, the community, the police, and everyone else who want sincerely to avoid human misery and suffering at every cost. The uprising in that city and in cities across the United States in the last couple of nights is a clear signal that the people of America are upset with the way our criminal justice system is playing out, and the need for some sort of reform, So, sure, look into reform and create a group to do it. Look into police training and tactics. Look into pretrial justice. Look into the grand jury system and other prosecutor practices. But leave out the people who aren't even sure why the citizens of Ferguson are upset. Leave out the people who think that the country is overreacting. Basically, leave out the people who caused all of our problems to begin with. They had their chance.  

Warnings from the Appellate Courts

I don't have much time to devote to two really significant cases in bail, but let me start with the fact that it's pretty incredible to have two really significant cases in bail in such a short time. We're in that part of the third generation of bail reform where we're seeing changes, and big-time cases and opinions are part of those changes. They're only going to keep coming, and so I offer up this post as a couple of warnings from the appellate courts.

The first case is the Valenzuela case out of the Ninth Circuit. In that case, the en banc court struck down Arizona's Proposition 100, which amended the state constitution to preclude bail for certain felony offenses if the person charged was deemed to be in the country illegally. There's a lot of political drama concerning the immigration issue in this case, and frankly I'm not sure how it will all flesh out, but I only want to highlight one important thing -- in this opinion, the Ninth Circuit basically held up Arizona's state bail laws and practices against the U.S. Supreme Court's opinion in United States v. Salerno and found those laws and practices lacking. This is a big deal, as I -- along with a number of others concerned with how bail has evolved in America -- have been preaching that the states have been ignoring the lessons of Salerno ever since it was issued. Accordingly, this is the first warning: if appellate courts begin to hold up state bail laws or practices -- such as blanket denials of bail without due process or detaining bailable defendants by using money -- against Salerno, then we're going to see a bunch of states having to change those laws and practices based on federal constitutional law.

The second case is State v. Brown, in which the New Mexico Supreme Court reversed a trial court's decision to keep an unattainable financial condition of bond ($250,000) intact, and ordering the release of the defendant on non-monetary conditions. The number of fascinating quotes, cites, and other interesting parts of this opinion are too numerous to list, but a smattering include:equating the term "bail" to pretrial release, the only definition that can be defended legally and historically; citing to Duker, De Haas, Carbone, Freed & Wald, Beeley, Goldfarb, Thomas, and Foote to bolster the court's historical analysis; citing to Devine to explain how all other countries have avoided commercial sureties; citing to Pannel's "keys to the jail" quote; explaining the Manhattan Bail Project; citing to various important bail researchers, including Cohen & Reaves, VanNostrand, Goldkamp, Bechtel, Clark, Jones, & Levin; citing the American Bar Association Standards; explaining how analyzing bail in New Mexico starts with a determination of "bail" and "no bail;" quoting Stack v. Boyle for the requirement of individualization at bail; rejecting so-called "standard bonds;" quoting Bandy to say that setting a financial condition to detain would be unconstitutional; and quoting Justice Jackson's concurrence in Stack to remind judges that we must embrace the risk that is inherent in bail as the price of our system of justice. You really have to read this one to believe it, and especially the last paragraph, in which the court cautions judges to "faithfully honor the rule of law," whatever the consequences.

Brown signals a clear break from the kinds of bail opinions we've grown accustomed to in America. Here we have a state supreme court opinion that uses equal parts of bail’s history, the law, the pretrial research, and the national best-practice pretrial standards to articulate how, at least in New Mexico, setting bail arbitrarily, irrationally, or unfairly will no longer be tolerated. I expect more opinions like Brown in this generation of pretrial reform. And thus, this is the second warning: states that have grown averse to taking the risks that are inherent in America’s system of bail, or accustomed to bad pretrial practices like using “standard bail amounts,” setting money to protect public safety, setting money amounts with a purpose to detain bailable defendants, and basing the bail decision on single factor such as top charge, will likely be forced to change.

As a final point, consider this: in Brown, the New Mexico Supreme Court did not send the case back to have the trial court set a different or a lower amount of money. In the end, the court ordered the defendant's release on no money whatsoever. It's a subtle point, but worth noting, that if a court, like this court, understands the fundamentals of bail, there won't be much room left for money.

I'll stick the two cases on my website, which you can find at www.clebp.org.

Bail -- Where Do I Start?

Where do I begin if I'm thinking about making improvements to bail? What do I read if I see a bill in the upcoming legislative session that seems to be taking my state backward in terms of pretrial justice? They're good questions, and questions that I and the National Institute of Corrections felt should be answered.

We answered the questions with two documents -- Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform -- and Money as a Criminal Justice Stakeholder: The Judge's Decision to Release or Detain a Defendant Pretrial. You can get them either through the NIC library or by going to the following link on my website: http://www.clebp.org/, and then click on the tabs for either "Fundamentals of Bail" or "Money as a Criminal Justice Stakeholder."

The Fundamentals document is precisely what the title says it is. First, it's a resource guide, and you'll find more than enough sources and resources in that single document (current to about August of this year) to help you find your way in each knowledge area, including (1) why we need pretrial reform, (2) the history of bail, (3) the legal foundations underlying bail, (4) the pretrial research, (5) the national standards, and (6) the terms and phrases used at bail. Second, it's a new framework for looking at things, and is designed to get everyone on the same page so that they can make improvements to the pretrial process that are purposeful, lawful, and effective. This document was written so that anyone interested in pretrial justice -- from line pretrial or police officers to governors or legislators -- can read it, and it's designed to be one of the first things one reads when considering pretrial improvements.

Although other people will benefit from reading the Money document, that piece should specifically be given to judges. Basically, it says that once they know the fundamentals of bail, judges following the legal and evidence-based practices discerned through those fundamentals must make an in-or-out decision in every case, with nothing (including money or poor laws) standing in the way of effectuating the decision. It then cites to the most current research that helps judges do precisely that. The paper has a few more footnotes, quotes, and other stuff that judges like to see if they are considering changing practices, and so it's not quite as easy to read as the first one, but hey -- it's shorter!

By the way, the papers are compatible with and run parallel to other important learning modules, such as the National Judicial College's Pretrial Curriculum, and the NIC's Orientation for New Pretrial Executives. In addition, you will see a strong correlation between the concepts in these papers with the new electronic glossary published on the Pretrial Justice Institute's website in the last week. That's on purpose.

As I say in the papers, pretrial justice is like sharing a book -- it helps to be on the same page. These documents are designed to do just that.

Make sure you have the most current version -- it has a couple changes that we made in the last week or so. You'll know it's current by the dates in the web address, including November 5, 2014 and September 8, 2014.  Happy reading!

The Future of Pretrial Justice in Colorado

Somebody recently told me that I should set down in writing what we still need to do in Colorado for pretrial justice. We started down this path several years ago, just learning about bail and pretrial reform. After a year or so of formal study, the Bail Subcommittee of the Colorado Crime Commission made three recommendations of how to improve the state's bail laws. Those recommendations were ultimately incorporated into the bills passed in 2013 and 2014.

Unfortunately, those recommendations covered only what we call "bail," or release, and didn't have anything to do with what we call "no bail," or detention. Pretrial justice involves both "bail" and "no bail," and to make improvements to "no bail," we were going to have to change not only the statutes, but also the constitution. Colorado's constitution, like most in America, makes the detention decision hinge on top charge, rather than on empirical risk of pretrial misbehavior, which automatically means that the constitution is outdated and in need of revision.

Colorado is like about 19 other states with preventive detention in their constitutions. Preventive detention is the ability to hold defendants without bail in cases of extreme risk. Specifically, the Colorado provision only allows a judge to detain a defendant if he or she has the requisite charge (a crime of violence), along with some showing of danger (significant peril), and some precondition (like while on probation, parole, bail, or after certain other felony convictions). The prosecutors and judges I know understand that these three elements make using the Colorado preventive detention provisions extremely rare. We hardly ever see a defendant with all of these things -- charge, danger, and precondition -- but we still have money, so basically judges deal with extremely high risk defendants by setting million-dollar cash only financial conditions.

Here's my best illustration. Not too long ago, a defendant named Bruco Eastwood, a guy who had mental illness (we know this because later he was declared not guilty by reason of insanity), took his dad's hunting rifle, went down to a local middle school, and started shooting kids. Nobody died, thank goodness, but this guy represented about as high of a risk to both public safety and for failure to appear for court that you can possibly represent.

The problem was that Bruco Eastwood didn't fall into the categories in our constitution that would allow judges to hold him without bail. In particular, he didn't have the requisite preconditions. So, instead of using the lawfully enacted constitutional process to detain him, we had to go through the semi-charade of setting bail with unattainable conditions of release that were actually designed to keep him in jail. In the end, he got a one-million dollar cash-only financial condition, along with a bunch of non-financial conditions just in case, God forbid, he actually got out.

This sort of thing -- setting bail with big amounts of money to detain people -- is happening all over the country, and it's basically the same thing that happened in the 60s, 70s, and 80s, before we even knew what preventive detention really was. Back then, we had a whole period of bail reform that led most states to change their constitutions or statutes to allow judges to detain people without the charade. And when we made those changes three and four decades ago, we quite reasonably created the detention availability "nets" based on certain super serious crimes -- indeed, using top charge was the only real way we had to give everyone a quick assessment of risk, and besides, the U.S. Supreme Court had approved of a detention scheme that used a charge-based net. So what you have today is a bunch of states that allow detention for high risk, but that risk is typically articulated primarily in terms of what the defendant is charged with.

Starting in about 2003, though, various American jurisdictions started getting really good at assessing a defendant's pretrial risk by using empirical or research-based risk assessment instruments, which use mathematics and statistics to give us a pretty good idea of which defendants will come back to court and which will stay out of trouble pretrial. And what we're finding out is that often these instruments show that some people with serious charges can be pretty low risk while some people with not so serious charges can be pretty high risk. In fact, now it's getting pretty common to see people wander into our justice system who are extremely high risk but who are technically "bailable" under any particular state scheme. When that happens, judges are setting those super high bonds, but it's just a matter of time before an appellate court says that the practice is unlawful. Think about it -- if you already have a lawfully enacted process for detaining defendants without bail, is it okay for a judge to say, "Well, I'm not going to use that process; instead, I'll just do it my way by using money?" It's as if a judge had said, "Yeah, I know you have a right to a jury trial, but I think I'll just skip that."

By the way, low and medium risk people are affected by all of this too. If you leave money in the system, as we did in Colorado, and give judges no choice but to use it for high risk folks, pretty soon they're using money on everyone, and the low to medium risk people can't get out of jail either. Overall, it's a pretty screwed up system, but it's what we have in America -- low to medium risk people can't get out of jail due to money, and high risk people can buy their way out of jail using money.

Oh, and lest you say, "Well, the high risk people can't get out if you set a million dollar bond on them," then just read the headlines. I've seen people post $10 million bonds. And when it comes to cash-only bonds, I once saw the Saudi Arabian government post a $2 million cash bond. And don't forget, the whole idea of "setting bail to detain" is likely illegal. There was a time in the history of bail in America when we all agreed on this. As we learn more, I think we're going to start seeing appellate courts agree, too.

The bottom line is that we only went halfway with pretrial justice in Colorado. We did some things with "bail," but we didn't get rid of money (mostly due to the inevitable compromises based on politics). And we didn't do anything with "no bail." I remember trying to get people to keep going, but for a bunch of reasons -- including the fact that it's hard to change a constitution, and at least one obstinate member of the Bail Subcommittee did his best to make everyone miserable even when we all agreed -- we stopped.

We know what we still have to do. New Jersey figured it out, too, and it's changing its constitution and statute to infuse pretrial risk into its release and detention scheme. Same with Delaware. Practically every state needs to do the same thing, and Colorado probably needs to do it more than most. The future of pretrial justice in Colorado means getting everyone together to craft the proper "bail/no bail" dichotomy in our constitution using pretrial risk instead of charges and preconditions. If we create a dichotomy that everyone can live with, and then we set up a lawful way to detain the 10 to 15 percent of defendants who are extremely high risk, we can add language to make sure that money doesn't continue to interfere in the release and detention process. In the end, some relative small percentage of defendants will be detained through a procedural-due-process-laden hearing, and the rest will be released immediately on varying levels of supervision, which could be as minimal as a phone call reminder like you'd get with a ticket, but which could include all sorts of non-financial conditions to protect people and make sure the defendant comes back to court.  

It's actually kind of simple.

Bail Fact # 733

In 1898, the first commercial bail bonding company opened for business. By 1920, America had begun to realize that it had made a mistake by allowing that to happen. In 1922, Roscoe Pound (Dean of the Harvard Law School) and Felix Frankfurter (future Associate Justice of the United States Supreme Court) offered the following simple solution to the dilemma. They wrote, "if we eliminate the opportunity [for the for-profit bail bonding] business, those who are now engaged in it will seek a living elsewhere."

At least it sounds simple. I wonder, did they have any bail insurance company lobbyists back then?

 

The History of Bail in Ohio and Washington

This is the part of the Third Generation of Bail Reform in which we start seeing changes to policies, practices, and laws. So it's no surprise to see a couple of state supreme court cases dealing with bail. In both Ohio and Washington, the highest courts had to interpret those parts of their constitutions articulating a right to bail through "sufficient sureties." I won't go into detail about the cases, but I will mention two or three things of which I have written before.

First, the history of bail is not purely academic. Courts today still use bail's history to figure things out, like what "sufficient sureties" means in a state constitution. They may not always get it right -- for example, if the Ohio Court really knew bail's history, it would agree with the dissent's statement of bail's purpose -- to release people -- and it would more properly define "bail" as a process of release; if the Washington Court really knew bail's history, it would fully understand the historical concept of assessing sufficiency and would not be so quick to separate the concept of personal recognizance from bail.

Second, one of the major themes running through the history of bail is that whenever anything interferes with a bailable defendant's ability to be released, some correction becomes necessary. The notion that bailable defendants should actually be released is how we got Habeas Corpus, how we got the Excessive Bail Clause, and accounts for the entire first generation of American bail reform in the Twentieth Century. In Ohio, the trial court was basically requiring defendants to pay some percentage of the financial condition in cash, and wouldn't allow them to use bondsmen. In Washington, same thing. The problem was that these restrictions were causing the detention of bailable defendants, and therefore history demands a correction. It always has, and I assume that it always will. Thus, these cases were wholly predictable; indeed, across the country, I warn jurisdictions that if they continue to detain bailable defendants, there will inevitably be some correction or reform. In the 1800s, we started running out of personal sureties (people who were willing to take responsibility for defendants for no profit) and the result was the detention of bailable defendants. Our response, though poor in hindsight, was to allow people to profit from bail. We moved from a personal surety system to a commercial surety system primarily to make sure that bailable defendants got out of jail. What we didn't realize then was that the commercial surety system would cause nearly as much detention as not having sureties at all. It all follows the same pattern.

Third, we are seeing a trend. Judges across America are starting to realize that money poses some pretty serious problems with how we administer bail. On the one hand, money often keeps bailable defendants in jail, which, as I said before, requires historical correction. On the other hand, money doesn't help at all with unbailable defendants (or those whom we feel should be unbailable based on risk) unless it is set with a purpose to detain. If you're worried about public safety, you certainly wouldn't set a commercial surety bond -- bondsmen sometimes let defendants out with no money down and on payment plans, and even then the money isn't even forfeited for a new crime. No, risk to public safety is mitigated by non-financial conditions and, in some very rare cases, detention ("no bail"). Unless we dramatically reduce our reliance on money in the administration of bail, we will continue to see judges struggle with it and thus see issues surrounding money that can only be addressed in the appellate courts.

All of this points to the need to change not only our bail statutes, but also our relevant constitutional bail provisions to create proper "bail/no bail" dichotomies based on defendant risk. As I said the last time I wrote in this blog, a model constitutional provision would likely eliminate such terms as "sufficient sureties," because they are archaic, confusing, and get in the way of what we really need to do, which is to create the proper ratio of released to detained defendants. Sureties and their sufficiency were important concepts to English and American bail based on the personal surety system, but those concepts are simplistic and quite antiquated today.    

The bail insurance folks look at these two cases as wins for commercial bail, but they aren't. Indeed, in its opinion, the Ohio court goes out of its way to say that sureties can mean any person willing to take responsibility for a defendant (a historical concept) and not just someone who does it for profit. Moreover, to say, as the commercial folks do, that the opinions are supported by decades of research proving the effectiveness of for-profit bail bonding is simply false. If anything, the research shows commercial bail to be a failed experiment with effectuating release. We started using commercial sureties in about 1900, and by 1920 we had our first study saying that we'd made a mistake. Instead, I would look at these cases as wins for bailable defendants, who should be released but, for whatever reason, are not.

These two opinions address the situation when a judge keeps a bailable defendant in jail by making him or her pay cash and won't give him access to other means that might effectuate release. But the opinions don't talk about the other things that we need to fix. Like, for example, what happens when a bailable defendant can't pay the cash and the bondsmen won't help him out? Tough luck? I doubt it. We have a line of cases saying that bail is not excessive simply because someone can't pay it, but I predict that these cases will soon be overturned or otherwise negated. They contradict history, and their underlying rationale is worthless given our current understanding of risk and risk mitigation. Ultimately, it'll be the bondsmen and insurance company's core tendency to pick and choose defendants based on their wealth that will cause courts to reject the for-profit industry. Historically speaking, it's inevitable. In addition, these opinions have little to do with the implementation of "no bail," which is an equally important concept of pretrial justice, and which will undoubtedly be the subject of future appeals. In short, we're moving away from using money at bail, and the fact that a couple of state supreme courts are still talking about money won't change that fact.

The Ohio and Washington cases are interesting, but probably only the last gasps of courts trying to accommodate money in a system of bail that has simply outgrown it.

Changing "Bail" and "No Bail" in the State Constitutions

Here's my dilemma. I'm quite proud of Delaware's foresight concerning bail reform. Delaware, apparently through the hard and admirable work of Beau Biden and others, has seen that pretrial justice in that state begins with a constitutional amendment designed to set up the "no bail" side of a proper "bail/no bail" dichotomy. My dilemma comes from the fact that I have to look at reform in the long term. Accordingly, I feel the need to comment on the current version of that amendment so that other states might be able to do the same thing, only better. I do this knowing full well that enemies of bail reform will use virtually everything -- including some unknown blog -- to thwart progress.

Still, there's good reason for taking a harder look at proposed constitutional amendments. Not too long ago, Washington State had a really terrible thing happen, which caused everyone in that state to realize that their constitutional right to bail provision needed amendment. You see, their constitution only allowed the government to detain people pretrial (i.e., "no bail") when they were facing murder charges. And so when Maurice Clemmons, a very dangerous and high risk defendant, shot and killed four police officers in 2009 while released on bail for a crime other than murder, the people of Washington quickly understood that their constitution would not have allowed anyone to lawfully detain him. So Washington changed its constitution. Unfortunately, to make sure that a "Maurice Clemmons type of case" couldn't happen again, Washington only changed the constitution so that, in addition to murder, judges could also detain people facing life in prison.

It was a good opportunity wasted. Washington could have changed its existing constitutional bail provision to allow for detention based on high pretrial risk, but instead it only added another category of charges. In Washington today, high-risk pretrial defendants not facing murder or life in prison may not legally be detained, which leaves only two options for judges: follow the law and set bail so that release is actually effectuated (and thereby threatening public safety), or use money and hope that the high risk defendant can't get out of jail. Thus, Washington is not much better now than it was before the constitutional amendment.  

I think we all learned from that experience. We learned that if we're going to go to the trouble of changing our constitutions, we ought to take the time to do it right. So let's take a look at Delaware's proposed constitutional amendment, albeit with the following caveat: I'm in no way saying that the proposed Delaware amendment is fatally flawed. Unlike the Washington amendment, it avoids fundamental errors, and it's also likely that the implementing statute can tidy things up even more. It takes a while to get the constitution changed in Delaware, and so I say, "keep moving forward!" This blog today is written to help all those other states in America, which, like Delaware, recognize that some constitutional amendment may be necessary for pretrial justice.

Let's start with what Delaware has already. Delaware is one of  about 21 states with "broad" right to bail provisions modeled after Pennsylvania's 1682 bail law, which made the right to bail available to all "unless for capital Offenses, where proof is evident or the presumption great." In addition to these 21 states, there are about 20 more that started with broad right to bail provisions, but have, as Delaware seeks to do, amended their constitutions over time to allow for preventive detention, which is the ability to lawfully detain a defendant pretrial without going through the charade of setting conditions of release that the court hopes the defendant can't meet. The other nine states operate like the federal system -- they have no right to bail clause, and so they can relatively easily enact statutory detention provisions. The 20 states that have already amended their constitutions mostly did so back in the 1980s and 1990s, and those constitutions look a lot like the constitution in Washington; they're primarily charged based, although some have preconditions, and some even have some elements of pretrial risk built into them. The point, though, is that Delaware allows bail for all except some extremely small class of people.

That might seem sufficient, except for two things. First, the history of bail and the law intertwined throughout that history allow both "bail" (release) and "no bail" (detention), so long as we set them up and do them correctly. Put another way, states are allowed to set up their own "bail/no bail" dichotomies, and so long as they follow certain fundamental legal principles, such as making sure that the right to bail or release is the norm, it's okay to detain pretrial a certain small group of people. This generation of bail reform is focused on risk, and so the most rational (and thus likely lawful) way to separate those whom we detain from those whom we release would be based on their risk of pretrial failure, with the extremely high risk defendants being detained and the low to medium risk (and even some high risk folks) being released. The fact that we know we're able to create our own lawful "bail/no bail" dichotomies without violating the federal constitution means that we have few excuses for tolerating a system that grants people a right to bail but then effectively denies that right for a group of defendants who could rightfully labeled as "no bail" in the first place.

Second, it's likely that Delaware is basically detaining defendants already, only by using money instead of a lawfully enacted procedure that might, for example, give defendants certain procedural due process rights prior to depriving them of their liberty. This was happening in the middle of the 20th Century, and it's when all those states I mentioned earlier started enacting preventive detention constitutional amendments and statutes. The bottom line is that Delaware has a "broad" right to bail provision, but that right is probably meaningless. Defendants are likely being detained both intentionally and unintentionally using money, and so changing the whole system -- starting with the constitution -- so that the system is more rational and transparent is a good start. Oh, and I should add one more thing. If a state basically tolerates judges using money to detain high risk folks, it's practically a certainty that money will filter into everyone's case, and you will also end up detaining boatloads of low to medium risk people who just can't pay the money.  

Delaware wants to enact a constitutional provision that allows detention for more than just capital offenses. Specifically, it seeks to allow for the pretrial detention of defendants facing "other such felony offenses and under such other circumstances as may be prescribed by law when no condition or combination of conditions other than detention will reasonably assure the safety of any person or the community." I suppose you could read this two ways. The first would be that Delaware is only allowing detention for an additional class of defendants charged with other felonies, and the "other circumstances" contemplated for the legislature would only address this increased class. I hope not, for that was the main problem with the constitutional amendment in Washington. The other way to read it is that felony offenses will definitely be a part of the detention eligibility net, but that the "and under such other circumstances" language gives the legislature sufficient room to design a proper "no bail" or detention scheme that is not necessarily tied only to felonies. Either way, it leaves the heavy lifting to the legislature, which can be good or bad.

The good part is that, given the leeway, the legislature can design a really good detention statute -- one that perhaps has a somewhat broad detention eligibility net based on a combination of charge and risk, but that systematically narrows that net so that those detained are very few. In this sense, the language in the constitution making sure that a precondition to detention is that "no condition or combination of conditions" will suffice to assure public safety or court appearance is a phenomenal addition. So very often in America today, judges detain defendants using money when it's clear that other conditions, virtually all non-financial, would easily provide reasonable assurance of public safety and court appearance for the vast majority of criminal defendants.

The bad part is that legislatures, historically, tend to add to statutes rather than to take away from them. Delaware must remain constantly vigilant that the legislature doesn't continually add to the types of charges and "other circumstances" that can lead to detention. This has already happened in the "charge-based" world of bail detention, with legislatures repeatedly adding to lists of, for example, "dangerous" or "violent" felonies, or by increasing crime severity to make them eligible for those designations.

This is a blog, and so I won't repeat at length what I have already written in the past (also, I should have a couple of new papers coming out soon that really provide a lot of detail in designing proper 'bail" and "no bail" dichotomies). But if you're going through the considerable bother of changing your whole constitutional bail provision, why not go all the way? This is how I would have done it.

First, I would have gotten rid of the words "bail" and "sufficient sureties" as archaic, unnecessary complex, and confusing. I love the term bail, and I've read and written more about the history of bail than most people I know. But I know when to quit. Quite simply, bail means release, but we've gotten so far from that meaning that we've grown accustomed to paradoxes (for example, to be "held on bail"), bad court opinions, release orders that don't actually lead to release, and judicial "decisions" that are based on chance. If possible (you never know exactly how wedded people are to these things) I would also have gotten rid of any of the archaic "proof evident, presumption great" language. There's really no reason to treat capital offenses differently from anything else, and a newly created constitutional release and detention provision would theoretically cover all charges and risk levels. Pennsylvania only put that in there to help more capital defendants get out of jail. I doubt that whatever weird case law that has grown up around the phrase makes as much sense today as it did in, say, nineteen thirty-something.

I would have started my constitutional provision with a paragraph outlining the right to release (the United States Supreme Court has equated the right to bail with the right to release, and the history of bail supports bail defined as release). I would have articulated a purpose that encapsulated the lawful purposes underlying the bail or release process, and, if necessary, I would have quoted from the United States Supreme Court's opinion in Salerno that we endeavor to insure that pretrial liberty remain the norm.

In my second paragraph, I would have outlined "no bail," which I would have correctly called detention. This paragraph would have allowed detention based on extremely high pretrial risk for public safety or failure to appear for court, but it would also have included provisions so that it remained "carefully limited" (another Supreme Court warning) no matter what the legislature did with it. For example, I would have used some sort of adjective for risk (such as "extremely high") and I would have tied pretrial risk to that measured by an objective, research-based risk instrument designed to predict pretrial failure. Essentially, I would have talked only about pretrial risk, not charge. Thus, if the supporting statute incorporated charges into a hybrid release and detention system, then the constitution would be final arbiter of the riskiness of any particular individual. I would then have actually defined risk (at least the outer borders) in the constitution so that the legislature wouldn't re-define it year after year based on its shifting notions of public safety, etc. Defining risk in the constitution is the hardest part, by the way, but not because we don't know how to do it. It's a political will thing.

I would then have outlined the extremely important provisions that would serve as the minimum requirements for a detention hearing, likely modeled after the federal statute. I might even have put in a different burden of proof. Overall, I've seen too many states create preventive detention provisions in their constitutions and then neglect the due process. To assure that the right to release remained meaningful, and that future practices couldn't serve as some perverted replacement for a rational and transparent detention process, I would have added a final, and crucial line stating that, as a constitutional requirement, a defendant could not be detained just because of money. Making sure that money doesn't detain is the key to doing both bail and no bail correctly. History has shown that you can enact the best procedural-due-process-laden hearings for detention, but judges won't use them if money will do the same thing quicker. Making sure that money can't detain will force judges to detain on purpose, and only after a proper hearing. They should be doing this now, but they aren't, so we really need that particular line.

In the final paragraph, I would have articulated what the legislature would need to do to enact the proper release and detention scheme. I might have added certain language that I wanted to make sure had some constitutional basis, such as the "no condition or combination of conditions" language from Delaware's proposed law, or language requiring the use of "least restrictive conditions," which is often articulated (and often ignored) as a part of the states' bail law anyway.    

The great thing about this is that you can see a bit of a template here: release, detention, legislative authorization. Theoretically, you could create the nation's shortest constitutional bail clause in just three lines, or expand it into three paragraphs, or even three pages depending on the state's values.    

Anyway, that's how I would have done it.

Sheriffs Say "No" to Bondsmen

Here's a link to PJI's coverage of the National Sheriffs' Association Conference, in which the Sheriffs voted not to endorse the commercial bail bondsmen in any way.

http://www.pretrial.org/national-sheriffs-conference-votes-no-on-commercial-bail-bonds-resolution/

The bondsmen -- I should say the bail insurance companies, who have been angling for this for a while -- wanted the Sheriffs to say in a resolution that commercial bail bondsmen were indispensably valuable to the criminal justice system. The Sheriffs said "no," and it's not really hard to see why.

Back in a 2012 resolution, the Sheriffs publicly recognized the value of high functioning pretrial services programs "to enhance public safety; promote a fair and effective justice system; provide assistance to sheriffs in the administering of a safe jail and reducing jail crowding; and help relieve the financial burden on taxpayers." The "whereas's" that set the tone for the resolution were especially telling. One said that a justice system relying on financial conditions of release at the pretrial stage is inconsistent with a fair and efficient justice system. Another talked about the purpose of limiting pretrial release -- to help assure court appearance and public safety. Yet another talked about how most pretrial inmates are incarcerated solely due to their inability to pay the secured financial condition of their bond. So, you see, you couldn't possibly expect the Sheriffs to endorse commercial bail bondsmen. Here's the breakdown.

The Sheriffs are concerned with public safety in addition to court appearance. The bondsmen, however, have no interest whatsoever in public safety, mostly because they don't lose any money if a defendant on one of their bonds commits a new crime. As long as the defendant doesn't miss court, a new crime is simply a new business opportunity for bondsmen. This represents a primary failure of the commercial bail bonding business -- there are two constitutionally valid reasons for limiting a defendant's pretrial freedom: (1) court appearance, and (2) public safety. Bondsmen and bail insurance companies only care about one, and it isn't public safety.

The Sheriffs care about a fair and efficient justice system. The bondsmen, however, like the idea of determining who gets left in jail based on how much money they have. This, of course, is the epitome of an unfair justice system. Moreover, when you base release on wealth, the people you leave in jail wind up costing a heck of a lot of money. It often costs communities $100 or more per day to house a defendant in jail, while release under the supervision of a pretrial services program or agency might cost only $5 per day or less. The inefficiencies associated with the administration of bail based primarily on secured bonds administered by commercial sureties are staggering.

The Sheriffs care about a safe jail that isn't crowded.The bondsmen, however, could care less about safe jails, and crowding jails is really the only thing that they're any good at. Ever since America changed to using primarily secured bonds administered by commercial sureties in about 1900, we have continued to have big problems with jail crowding. Basing release on wealth causes unnecessary pretrial detention. But basing release on wealth is the bondsman's raison d'etre.

The Sheriffs also care about relieving the taxpayers' burden. Here's the tricky one, because the bail insurance companies continually accuse pretrial services agencies of being "criminal welfare programs," etc., which cost the public more than bondsmen. The problem, of course, is that release to a bondsmen and release to a pretrial services program are two completely different things. Like I said, bondsmen only "supervise" -- if you can even call it that -- defendants to make sure they come to court. If a judge wants some sort of supervision to protect the public, the bondsmen can't (or won't) do it. It's just not in their business model. So whenever a judge orders some condition of release designed to give reasonable assurance of public safety in addition to court appearance, that judge has no choice but to rely on pretrial services program supervision to see it through. On top of this, remember when I said earlier that if a defendant doesn't have any money, bondsmen and bail insurance companies have no problem letting him or her sit in jail at $100 or more per day. That's a taxpayer burden that they could really care less about. They'll argue to the death how expensive it is to have a guy supervised in the community for $5 per day, but they won't say a thing about the defendants that they leave in the jail.

So it's no surprise that the Sheriffs said "no" to the bondsmen. It would have just been too weird to care about public safety, a fair and efficient justice system, safe jails, and the taxpayers, and then endorse a group that doesn't seem interested in any of those things.  

Bail on the Fourth of July

Well, here it is -- the Fourth of July -- but before I make like Joe Dirt and "keep on keepin' on" by crankin' up some Free Bird and lighting some Black Cats and Nipsy Daisers (with and without the scooter stick), I want to highlight a part of the American history of bail that I think we tend to forget.

America borrowed most its bail laws and practices from England, but at the time of the Revolution one thing that the Colonies definitely did not like about English bail law was how it gave people a right to bail but then simultaneously allowed persons of high authority (like the Crown) the discretion to deny it in any particular case. In fact, the Colonies disliked this discretion to deny bail so much that when they crafted their bail statutes and constitutional bail provisions, they typically articulated broad, unfettered rights to bail for all except those charged with a few (typically capital) cases. Pennsylvania's bail provision, which became the model for virtually the whole country thereafter, articulated a right to bail for all persons except in capital cases "where [the] proof is evident or the presumption great," adding a requirement to consider the evidence even in capital cases.

Both in England and America at the time of the Revolution, if you were bailable, you were supposed to be released. Bail equaled release, and, according to Blackstone, people who were deemed bailable during the Colonial period were almost all released. This was due to how we managed bail at that time, which involved using what we would now call "unsecured bonds" administered primarily through a personal surety system. Indeed, if you read about it, you quickly see that our use of money at bail in Colonial America was vastly different to how it is now. For starters, nobody was allowed to profit from bail. There were no bail bondsmen and no insurance companies, and none of the seediness that tends to follow those groups around. Moreover, if you were a defendant, you couldn't even promise to pay back a surety who took responsibility for you before your trial (i.e., indemnification was not allowed). The personal sureties' responsibility to make sure defendants returned to court was an important one, and the courts rightfully felt that promising to pay those sureties back in the event of a default took away any incentive for them to fulfill their great duty. Finally, the financial conditions -- the amounts of money actually tied to court appearance -- were due and payable only if defendants didn't show up for trial. Nobody had to pay anything up front to get out of jail. Nobody had to come up with fees or collateral for bondsmen. And virtually every bailable defendant was released pretrial. In short, everything worked pretty good.

Think about that on a day like today, when we celebrate the freedom given to us as our birthright. As we celebrate that freedom, remember that we do so not only in the sense of moving away from the "repeated injuries and usurpations" of a tyrannical government. We also celebrate the expanded rights and liberties created in the wake of our separation, which should inspire us, once again, to make whatever changes are necessary to administer bail so that pretrial liberty truly is the norm.    

Revised Documents Explaining Colorado's New Bail Law

We've finished up adding revisions to our earlier documents explaining the changes to Colorado's bail law. You can find the revised documents here: http://www.clebp.org/newsandevents.html.

We wrote the first paper after passage of H.B. 1236 in 2013, and we made the revisions to explain the changes passed this year through S.B. 212. The explanations for the revisions are scattered throughout the paper (in bold and a different font, though, so they're pretty easy to spot) and they are also lumped together at the end of the paper.

I suppose it speaks for itself, so I won't add anything here.

Bail Terms and Phrases

I've been talking about getting Americans all together with their use of terms and phrases dealing with bail for quite some time. Here are a couple of examples of improper usage of bail terms -- one pretty easy, and one a bit more complicated.

First the easy one, which was recently published by a commercial bail bonding newsletter in an article titled, "Nine Questions Answered About Pretrial Release." Pretrial release? Excellent, we must be talking about the release, pretrial, of a criminal defendant, right? Nope. They're actually talking about pretrial services programs, agencies, or organizations, which are entities that are typically government run, but sometimes are private, and which provide services to courts including: (1) information gathering, including pretrial risk assessment of defendants; (2) recommendations to help judges with the release and detention decision; and (3) supervision for court appearance and public safety concerns. As far as I know, it's only the commercial bail industry and those who blindly repeat their claims that use the term "pretrial release" (or sometimes, just "pretrial") to mean these particular programs. Most state laws, and most people operating under those laws, are pretty good about figuring out the nuances between proper and improper terms and phrases, and therefore don't make this very basic mistake.

Whether done purposefully or not, equating pretrial release with these entities causes confusion and can actually hurt the bondsmen on the street, who are likely hoping that their industry newsletter will instead be giving them information that helps. I can't tell you how many events I've attended where some well-meaning bondsman says, "we're against pretrial release," or "we don't like 'pretrial,'" and the whole room looks at him like he's crazy. Judges and attorneys, for example, consider pretrial release to be exactly that -- the release pretrial of a criminal defendant with conditions designed to provide reasonable assurance of public safety and court appearance. One of those conditions might be pretrial supervision by a pretrial services entity, or one could be money, which is perhaps where the bondsmen come in. So here is a softball for the bail industry: at least start using this particular term correctly so that your constituency can be clear about what they are talking about. After all, I'm pretty sure that those constituents support the pretrial release of defendants, also known universally and historically as bail.

Now the harder one, which involves the more frequent misunderstanding between "bail" and money. In a recent article in New Hampshire, the headline read, "Bail for former councilor reverted to PR." To know what this means, we have to know what New Hampshire means by both "bail" and "PR."

Looking at the New Hampshire bail statute, you'll see a pretty decent section dealing with methods of release and detention, which include release on personal recognizance, release on a condition or conditions, and temporary and complete detention. So far, so good -- it looks a bit like the federal statute, which is a pretty decent statute in terms of defining things correctly and avoiding the especially confusing term of "bail." But then the New Hampshire statute lists various conditions, which include "furnishing bail" for the defendant's appearance. It also speaks of the "amount of bail," which is a pretty clear indication that New Hampshire equates bail with money. On one local attorney's website, things even get a bit more complex, as that attorney says there are three basic types of bail in New Hampshire, a PR amount, a cash amount, and a surety amount. To him, bail is still money, even though he would probably disagree with the usage in the headline.

The problem here, and in many states, is that bail is not money. Instead, when you research the history of bail as well as the law intertwined throughout that history, bail is best defined as a process of release, and money is merely a condition of that release -- a financial condition, or limitation on pretrial freedom, that must be assessed for lawfulness and effectiveness in any particular case. I have recently written a pretty long document explaining this, and so I won't go into detail. But I will say two things about bail defined as money. First, I have found that when states go so far as to actually define bail as money, they are not only at odds with the history of bail and the fundamental legal principles underlying the bail process, they are also at odds with most of the other states, the United States Supreme Court, the understanding behind the national best practice standards on pretrial release and detention, and virtually all of the best and most recent definitions of bail. Second, and more importantly, I have found that when a statute defines bail as money, it is a symptom of a legal scheme that is overflowing with money in most of its other provisions.

Colorado had such a scheme. Bail was defined as money, and therefore it included a number of sections that took money for granted, instead of treating it like any other condition of release. Our statute was flawed, and our court opinions, based on that statute, were also flawed. After a year of studying bail, however, our state crime commission recommended changes to the statute, which included changing the very definition of "bail" so that it was not equated with money. The best statutes in America simply articulate things in terms of release and detention. Indeed, these days, "typing" a bail bond based on how it uses a single condition of release -- money -- such as by calling it a PR bond, a surety bond, or a cash bond, is antiquated. It would be like calling it a "drug testing bond," or a "GPS" bond, if you understand what I'm getting at. Money used to be the only condition of release -- from about 500 AD to about 1960 -- but that's not true any longer.

So maybe the headline is somewhat understood by people in New Hampshire, but it's still really confusing for a majority of people in America, who would, instead, correctly say, "Even if someone is on a personal recognizance bond, he or she is still being released through the bail process." Based on the most recent pretrial research on risk, I have a feeling that the rest of the New Hampshire statute may need other amendments. My only comment today is that when looking into those amendments, the people of New Hampshire might want to research the proper use of certain terms and phrases.

Pretrial justice is like reading a book. It helps if we are all on the same page. And that includes the words we use.

Oops, we didn't mean to actually release him . . .

Here is yet another case that's a symptom of our dysfunctional bail system:
http://www.yorkdispatch.com/breaking/ci_25865269/york-businessman-accused-murder-hire-plot-free-10m#

The news article describes a judge doing what judges in America often do -- order the release of a person on bail, but then set a financial condition of release that most everyone figures will keep that person in jail. In this case, the judge in York County, Pennsylvania, set defendant Gregory Allen Hess's financial condition at $10 million. Yes, $10 million. And, frankly, everything was apparently going quite well until a for-profit bail bondsmen came and posted the bond. Oops. 

This case reminds me of another case in Missouri not too long ago, in which the Saudi Arabian government posted a defendant's $2 million financial condition of release. In that case, the judge actually admitted that he didn't mean for the defendant to get out. In fact, the judge said, he meant to detain the defendant, even if that detention violated the Missouri Constitution.  

So in York County, people are trying to figure out ways to reverse the release process. Right now they're looking to see if the bondsman has enough assets to cover the bond. All of that, however, is just a sideshow to the main event, which is that people just didn't want Defendant Hess to get out of jail. This isn't unusual. Across America, judges are setting "release" conditions that are designed to detain -- typically when they think that the defendant is a big risk to public safety.  

It's the same thing that was happening around the the middle of the twentieth century, and because it was a bad way to administer detention (or "no bail," as I often call it), we figured out how to change our laws (both statutes and constitutions) to allow judges to detain people in fair and transparent ways without going through the charade of setting unattainable release conditions. 

So why does it still happen? Well, it turns out that a lot of states simply didn't go far enough in making the kinds of changes required to do pretrial detention properly, mostly by not fully implementing the kind of detention scheme approved by the United States Supreme Court and by not drastically reducing the use of money at bail. On top of that, virtually all of the state release and detention schemes that we currently have are still based primarily on charge -- allowing states to detain defendants only when they are charged with certain enumerated crimes -- as opposed to risk, which would allow judges to assess the pretrial risk of any defendant, no matter what the charge, and potentially hold him or her without bail if necessary. All of this is especially important when you realize that money bail has nothing to do with public safety. Money can't keep you safe, and in virtually every state, money can't even be forfeited for breaches in public safety. Typically, you can only lose it if you fail to show up for court. Using money for public safety really only works when the defendant can't pay it. The problem is that using money to detain is likely unlawful. 

And sometimes, you know, an extremely high risk defendant actually pays it and gets out anyway. In Washington State, a judge set a $190,000 financial condition for Maurice Clemmons, who was assessed to be dangerous, a high risk to re-offend, and hallucinating. He paid it through a bail bondsman and within a week shot and killed four police officers. Just about a year ago, a defendant in Colorado was released on a $75,000 commercial surety bond even though a pretrial services assessment said that he was too risky to be adequately supervised in the community. While out, he shot a State Trooper during a roadside assist. In that case, the Trooper lived, the defendant died, and the bondsman kept his fee and didn't have to pay any of the $75,000.    

The history of bail and the law intertwined with that history tells us several things, but one of the biggest is this: both "bail" (release) and "no bail" (detention) are lawful if we do them correctly. When done correctly (and in the proper ratio), bailable defendants (or those whom we feel should be bailable) are released and unbailable defendants (or those whom we feel should be unbailable) are detained. When we don't do them correctly, however, history demands that we remedy the situation through bail reform measures. Indeed, starting in the middle ages in England, whenever anything has interfered with the proper functioning of this "bail/no bail" dichotomy, we have seen periods of reform. It's the reason we have Habeas Corpus, the reason we have the Excessive Bail Clause and the English reforms of 1554 (what?), and the reason we've had two previous generations of bail reform in America.   

In our country today, we are doing both "bail" and "no bail" incorrectly. We know this because there are bailable defendants who are not being released and there are unbailable defendants, or in Defendant Hess's case, people that we think should be unbailable, who are not being detained. The good news is that we know how to fix this. Unlike any other time in history, we have the best understanding of how to create lawful release and detention schemes, and we're seeing more and more states using this knowledge to restructure bail. 


The York County story presents merely a symptom of dysfunction and an example of the kind of interference with "bail" and "no bail" that historically demands correction. There's probably a joke here about the Borg in Star Trek and the futility of resistance in the face of being assimilated, but I am absolutely not joking when I say that this particular story reminds me of only one thing: bail reform is inevitable.              

New Jersey Bondsmen Abuses

The New Jersey State Commission of Investigation recently released a report documenting various abuses in the for-profit bail bond industry. You can read the press release to the report here: http://www.nj.gov/sci/pdf/Press/SCIPressReleaseBail.pdf.

The report is admirable, and likely very helpful to those in New Jersey seeking pretrial justice and bail reform. Even so, there are a few important things that the reader should note.

First, bail bondsmen abuses involving how they run their businesses are nothing new, and they still happen practically everywhere you go. Indeed, ever since we Americans switched from a personal surety system to a commercial surety system in about 1900, we have been steadily documenting bail bondsmen abuses. Around 1922, we saw our first exhaustive report on bail (by the highly regarded authors Roscoe Pound, Dean of Harvard Law School, and Felix Frankfurter, future U.S. Supreme Court Justice), which said that the surety system was flawed, due in great part to bondsmen abuses. Indeed, these two gentlemen called bondsmen "disreputable parasites," and advised of ways to avoid them. Since then, bondsmen abuses have led whole states to abolish the industry, and nearly every country except the United States to refuse to let them in. It has been harder in recent decades to deal with bondsmen abuses, primarily due to their partnerships with bail insurance companies and the highly paid lobbyists that they have hired to turn our attention elsewhere. The fact is that, historically speaking, bail industry abuses by themselves have been enough to eliminate bondsmen from criminal justice systems with no ill effects. Nevertheless, bondsmen abuses constitute only one of about twenty better reasons for why commercial sureties and the insurance companies who support them should be eliminated from all other justice systems. We should remember these things before we focus too hard on recommendations for reforming an industry that perhaps shouldn't even exist.

Second, the report's focus on "privately negotiated discount bail-bond deals" is misplaced. The report implies that if a judge sets a bond at, say, $10,000, and a bondsman makes a deal with a defendant to charge only, say, 1% of the amount rather than the customary 10%, then that deal somehow undermines the judge's order and endangers the public by "putting serious offenders back on the street for a few hundred dollars or less." This misunderstanding of the effects of money surrounding both judicial intent and public safety is unfortunate. Money has nothing to do with public safety, and the only way that money as a condition of release can keep people safe is when it is high enough to detain. Of course, using money to detain isn't necessarily legal, which is why the issue is more complicated than just trying to fix the bondsmen -- that's the judicial intent part. The people in New Jersey currently working on bail reform (at least those to whom I have talked) understand all of this, which is why they're crafting both constitutional and statutory provisions to allow for the fair and transparent detention of high risk defendants based on risk. Money at bail interferes with both release and detention, and fully understanding how that happens -- no matter how high or low the amounts -- is the key to bail reform in New Jersey and elsewhere.

Third, the people of New Jersey should not fall for the notion that if they simply move forward to fix bondsmen abuses, then they can achieve pretrial justice. That's simply not true. Bail reform in New Jersey involves creating an appropriate and lawful "bail/no bail" dichotomy and then adopting legal and evidence-based practices to correctly implement both bail and no bail (release and detention) using risk. It is quite likely that such reform will leave no place for money, let alone commercial bail bondsmen, no matter how much industry oversight is created.

I would have liked to have seen the report discuss bail as a mechanism of release, rather than money, especially since the New Jersey Supreme Court has equated the right to bail with the right to pretrial liberty. Bail reform in America means knowing certain fundamentals of bail. It means knowing how to use terms and phrases correctly. It also means understanding the pretrial research, including the research on money. And it means knowing that bondsmen abuse is just one of those things that's likely to happen -- indeed, it has always happened -- whenever you allow profit into the justice system.

Mother Jones Bail Story

If you go to the Mother Jones website -- at http://www.motherjones.com/toc/2014/05 -- and sign up for free, you can read the new article by Shane Bauer with the semi-spoiler title of "Lobbyists, Guns, and Money: Inside the Shadowy and Very Well Connected Bail Bonds Industry."

I wrote a blog this morning with my own take on the subject, but when I re-read it, it seemed quite negative, and I'm trying to be more positive about everything -- even bail insurance lobbyists. Shoot, I did it again. Oh well, I've deleted that blog and promise to do better in the future.

You can read Shane's article and come to your own conclusions.

Multi-Million Dollar Financial Conditions of Bail

I don't like writing about what I call "aberrational" cases -- those unique cases that make the news but that don't necessarily tell you what is really going on with bail in America. I would much rather talk about a case in which a judge set a $100 cash-only bond that led to the unnecessary pretrial detention of yet another defendant without money. That sort of thing happens all the time, but you just don't read about those cases very often in the news. Instead, the news reports on the aberrations, and when you watch the news for bail issues for a bail blog, you end up reading (and sometimes writing) about aberrational bail cases. Typically, they involve financial conditions in the millions of dollars. I saw two such cases the other day, and each raises similar issues.

The first case involved a 21-year-old San Francisco Giants fan, who set off an M-80 firework at a baseball game against the Dodgers. Nobody was seriously hurt, and the press reported that the defendant had never been in trouble before, but the judge set the financial condition at $2.4 million. Later, when the judge reduced the amount to a "mere" $100,000, the defendant's attorney said he believed the initial amount was simply an overreaction to other violent issues linked to Giants games. Now, I wasn't there, and so maybe the judge who initially set the financial condition had grave concerns about the risk to public safety and flight that were later found to be less concerning. But the paper didn't mention any of those things, and if the attorney is correct, then the financial condition of bail in this case was set for an improper purpose. There are only two constitutionally valid purposes for limiting pretrial freedom -- public safety and court appearance -- and judges are expected to base their decisions about setting conditions with only these two purposes in mind. Conditions set to placate public opinion, to punish, or as a reaction or an "overreaction" to other incidents are unlawful. Don't get me wrong -- the $100,000 reduction may be equally unlawful if set for an improper purpose. It's up to the attorneys in the room to force the judge to make a record as to why he or she is setting a particular condition. In bail, motive matters, and an improper motive can actually be the difference between a constitutional and and unconstitutional bail setting.

The second case is one you have probably heard about. Over a period of years, a Utah mother apparently killed 6 babies shortly after they were born and hid the bodies in her garage. The financial condition of bail in her case? Six million dollars, or, as the news reported, "one million for each baby." Of course it's a horrible and tragic case, but what makes it puzzling, bail-wise, is that the Utah bail scheme appears to allow judges to deny bail altogether for any person charged with capital felony or "a felony when the court finds there is substantial evidence to support the charge and the court finds by clear and convincing evidence that the person would constitute a substantial danger to any other person or to the community, or is likely to flee the jurisdiction of the court, if released on bail." If the court makes this finding, then it doesn't need to go through the somewhat disingenuous dance of ordering the defendant's release but setting the conditions of release so that release is unattainable. Again, I'm not there, but I read that the defendant actually admitted to killing the babies, and so if the judge just had this hearing, her or she could simply deny bail altogether. Following the theme of making sure one has a proper purpose for limiting pretrial freedom, setting a financial condition of bail simply to send a message to the public that the crime is serious would be unlawful. Moreover, setting a financial condition of release with a purpose to detain, especially when the state a lawful process for detaining defendants "without bail," as Utah does, should also be deemed an improper purpose and thus unlawful. There are a number of states in America that have enacted lawful procedures that can be used to deny bail (release) in any particular case. Many judges do not use those provisions because it is simply more expedient to detain someone by uttering some gigantic amount of money. Bypassing those provisions, though, means giving short-shrift to the rights that are being protected by the lawfully enacted processes.

All of this goes to states correctly setting up their "bail" and "no bail" dichotomies so that the right persons will be released or detained pretrial. Multi-million dollar conditions of release are typically symptoms of problems with the dichotomies. It's not necessarily an easy thing to do, but once states figure out how to correctly set up both "bail" and "no bail," I predict far fewer million-dollar conditions of release.            

Beware of Bail Lobbyists "Teaching" Our Students

I just read an article titled, "Bail bondsmen are a thing of the past in Massachusetts." According to the article, the phase-out started with bondsmen corruption, which led to the creation of alternatives to bondsmen, and finally to judges simply choosing not to use them. But it quickly reminded me of a recent You Tube video of a bail insurance lobbyist trying to convince college students why bondsmen are "indispensable" to the criminal justice system. I know lobbyists are paid to spin, but given the disconnect between what this lobbyist said and reality as epitomized in Massachusetts, it's no wonder that people are recognizing that the world might just be a better place without the commercial surety industry.

The lobbyist started by referencing a chapter in an American Bar Association booklet about sureties in which he and another author make the case for for-profit bail bondsmen. In fact, the part in that chapter talking about their worth is relatively new, and was created only recently to muddle the water about what the ABA really thinks about commercial sureties. In the ABA's Criminal Justice Standards on Pretrial Release, the document that was created by criminal justice system decision makers (i.e., judges, prosecutors, defense attorneys, and pretrial experts) and not bail insurance lobbyists, Standard 10-1.4 says that "compensated sureties should be abolished." There are a lot of reasons for this, and any good college student should probably look them up before taking the word of the commercial bondsmen's hired gun.

By tracing bail back to Egypt, the lobbyist implies that his industry has been around for eons. In fact, the commercial surety industry has only been a part of the American system of bail since about 1900. Before that, England and America relied primarily on unsecured bonds administered through a personal surety system, in which profit and indemnification were not allowed. Shortly after the introduction of commercial sureties, we realized that they would pick and choose who to release. That, and their tendency to engage in corrupt activities, led people to actively criticize commercial bail bondsmen as early as the 1920s and eliminating them as early as the 1960s.

Once again, the lobbyist uses U.S. Department of Justice Bureau of Justice Statistics (BJS) data to say that commercial sureties are a better form of release than all other forms. You just can't do that. The BJS itself said that you can't do that, and issued a "data advisory" warning people not to make evaluative statements based on their data because doing so would be incredibly misleading. I know that the bail lobbyists are aware of the advisory because when it came out they complained loudly. Since then, they have simply ignored the warning. You just can't trust the bail insurance lobbyists when it comes to research. There is good research out there, but you won't hear about it from the industry. Someday, if I have to, I'll detail the disturbingly cozy relationship these bail lobbyists also have with some so-called "neutral" researchers. It's fascinating stuff.

Once again, the lobbyist says that a commercial surety release is superior to all others because defendants think that, "they [bail bondsmen] are coming after me." That's not true either. If you don't believe me, ask any cop or deputy sheriff. We did here in Colorado, and for three months we tracked arrests made by 15 or so municipal agencies as well as walk-ins to the court. A whopping one-half of one percent were brought in by bail bondsmen or a bounty hunter. In another study, researchers compared defendants who failed to appear for court on secured bonds with those released on unsecured bonds. After one year, the numbers were equal, indicating that nobody was going after defendants on surety bonds more than anybody else. Yes, there are bounty hunters, and yes, some do make a living at it. But their prevalence has been grossly overstated.

The lobbyist says that people behind the current generation of bail reform are only concerned with helping defendants, which is also not altogether true. The current pretrial justice movement is focused on both "bail," or release, and "no bail," or detention. It is concerned with setting up legal and evidence-based practices so as to maximize the release of bailable defendants (while protecting the public and providing assurance of court appearance) and the detention of nonbailable defendants. Overall, it is concerned with public safety, court appearance, and appropriate placement of pretrial defendants. It's just that money gets in the way of all of this, and so we are moving away from it. If you move away from using money, you are bound to have bail insurance lobbyists come up with their own distorted reasons to explain what we are doing.

In a related statement, the lobbyist says that there's no such thing as a low risk defendant who can't get out of jail for lack of money to pay a bail bondsmen. That statement even defies logic. The Department of Justice estimates that nearly 90% of defendants held for the duration of their pretrial phase cannot post the monetary condition s of their bonds. Here in Colorado, we once did a study where we weeded out all the defendants who might have holds, etc., and other things getting in the way of release, and then we walked cell to cell to ask them why they weren't out. The reason was money. This was true in about 80% of the cases, and a bunch of those bonds were for less than $100. Now, this particular lobbyist qualifies things by saying that if a person can't get out, he must be a high risk and thus shouldn't get out. The big problem with this statement, of course, is that bondsmen don't base their decisions on risk. They base them on the defendant's ability to pay the fee and collateralize the bond.  They call a defendant who can't pay "high risk." I call him a defendant who can't pay.

The lobbyist then says that he has tried to "extend an olive branch" to work together with the various people behind the current movement of pretrial reform. Really? Compare that to the statement I read in the agenda to a recent national bail bondsmen conference, which said, "Next month's conference will give you MORE help in fighting pretrial in your state." In fact, back about three years ago, this very bail insurance lobbyist showed up at a County Commissioner Meeting in my county to discuss de-funding our pretrial services unit. I didn't detect any spirit of cooperation on that day.

Finally, the lobbyist cites to a study by the Texas Public Policy Foundation. All I can say is, look this group up through Source Watch to see what they are really up to. They are connected to big corporations, and ALEC, which is closely tied to the bail insurance industry. You know, when I was in college I was extremely suspicious of people older than me -- for good reason, it turns out -- but I held out hope that when our generation got older we wouldn't intentionally mislead anyone who came after us. Unfortunately, that didn't happen. Don't trust anyone, even your professors. Question everything. Look everything up.

The bail insurance lobbyist was the first speaker in what is supposed to be a "criminology lecture series." I would hope that in the future they will get some actual criminal justice types to speak to students. Having a bail lobbyist speak on criminal justice is not much better than a lecture from the guy who prepares and sells sandwiches to the jail. Students being students, I am certain that they were smart enough to see the talk for what it was -- a sales job. At the very least, the students likely now understand a bit how an entire state like Massachusetts can easily decide that this industry is far from indispensable.


     

New Jersey -- The Future of Bail in America

Here is a link to a report issued by New Jersey's Joint Committee on Criminal Justice, the committee created by the Chief Justice to address issues at bail: http://www.judiciary.state.nj.us/pressrel/2014/FinalReport_3_20_2014.pdf.

The document is remarkable for many reasons, but mostly because it represents the first time an entire state has figured out the essence of what is needed for bail reform in America and is actually going to work to achieve it. The document reports "problems at both ends of the spectrum," meaning that it is having trouble with both "bail," or release, and "no bail," or detention, in that state.

States can create a model bail scheme by simply recognizing the sorts of things that New Jersey has recognized. First, both "bail" and "no bail" are lawful if we do them correctly. Thus, it is entirely proper for a state to change its statutes (and constitution, if necessary as it is in New Jersey) to set up a scheme in which people are both released and detained pretrial in the proper ratio.

Second, doing each part correctly is not so hard, as we have currently the sort of research, best practice recommendations, and model jurisdictions to help with both "bail" and "no bail." Essentially, the no bail side has to hold up to various constitutional principles designed to make it extremely limited. The bail side must use evidence-based policies and practices designed to attain the three goals underlying the bail process: (1) maximize release of bailable defendants; (2) maximize public safety; and (3) maximize court appearance. The hardest part is simply figuring out how to infuse empirical pretrial risk into a system that has for too long been based on inefficient proxies for risk, such as top charge.

Overall, we must watch the New Jersey experience closely, for if we look at our American bail laws today, we see that virtually every state is in need of reform. In many states, that means changing both statutes and constitutions to best effectuate the "bail/no bail" dichotomy. Moreover, New Jersey is a good example of what we call a "top-down" state, in which prominent state leaders, such as the Governor and Chief Justice, have declared that bail will be reformed. I have personally seen that the progress made by "top down" states eclipses whatever progress we have seen in "bottom up" states, such as Colorado, in which a few committed reformers continually fight special interests without the help of most state leaders.

Bail Insurance Companies, Risk Assessment, and Leeches

Sometimes I read something I can hardly believe. Recently a bail insurance company -- you know, the kind of company that supports bail bondsmen so that if someone skips court, there is some pool of money lying around  to help pay -- said in a blog that it thinks pretrial risk assessment is a "shiny new toy" that is unnecessary to the field of pretrial release. That's because, the company explains, bondsmen are the kind of soothsayers that know, in their guts, whether or not someone is a good or bad risk for coming back to court. What makes this hard to believe is that this is an insurance company (i.e., a company that typically uses all kinds of actuarial instruments to determine risk for, say, health or life insurance) writing that an actuarial instrument is nothing more than a toy. That's a bit like a doctor saying, "Well, I like to use the modern medical procedures for treating most illnesses, but for cancer I prefer the leeches."

Everybody at bail is trying to determine defendant risk. That's because American law has evolved to practically demand that we embrace the risk of releasing defendants pretrial. So you would think that a statistical tool that would help us determine who the riskiest defendants are would be something everyone could get behind. Well, apparently not the bail insurance companies.

I think the reason those companies cringe when they hear about new ways of doing bail is because those new ways always shine a harsh light on the for-profit bail industry. When commercial sureties were introduced in America in about 1900, everyone was pretty excited thinking that they would actually help get bailable people out of jail. Unfortunately, they only made things worse because they charged fees and starting picking who they would help to release not based so much on risk but on their ability to pay those fees. Over the years, bondsmen and insurance companies have made it so it's virtually impossible for them to lose money. They only take people who can pay the fee and collateralize the potential amount owed. If the defendant skips, there are laws on the books in most states that make it practically impossible to force anyone but the defendant or his or her family to pay. As one bail bondsmen once said here in Colorado, "My job is to protect the insurance company from the loss . . . it's not a greed thing, we just don't want to pay." So, really, in the bail bond business, actual risk has little to do with anything. Who cares about risk when you don't have to pay?

Risk instruments also make the bail insurance companies cringe because those instruments assess risk that a defendant (1) may not show up for court and (2) may commit some new offense while on release, and that reminds people that the for-profit bail industry has absolutely nothing to do with public safety. If a bondsmen helps someone by agreeing to pay the financial condition of a bail bond, that money will never be lost if the defendant commits a new crime. Bondsmen potentially only lose the money if the defendant doesn't show up for court; in fact, a new crimes simply present new business opportunities for bondsmen. The fact that commercial bail bondsmen and the insurance companies that support them do nothing for public safety makes them like a horse and buggy riding along next to the new Ford plant. Its days are numbered. We have two constitutionally valid purposes for limiting pretrial freedom -- public safety and court appearance -- and the fact that the for-profit bail industry consistently only addresses one of these is, alone, cause for us to radically re-think our use of it.

As usual, the blog refers to BJS data that it says shows commercial bail bonds are "the most effective way" to get defendants back to court (note how it only addresses court appearance). A few years ago BJS itself was alerted to the insurance companies using its data to say the same thing, and BJS responded by issuing an rare advisory essentially telling everyone, but especially those insurance companies and bondsmen, that they can't make those types of statements anymore. The data simply don't support them. I know the insurance companies knew about the data advisory because at the time it was issued they complained loudly about it. Now, apparently, they have just decided to ignore it. The fact is that the commercial surety system in America is so flawed and unfair, so fundamentally backward, that even if someone could convince me that bondsmen do help get people back to court better than say, police (they can't, by the way), I would still say that we need to re-evaluate the utility of the for-profit system because it has nothing to do with public safety and in the aggregate only causes unnecessary pretrial detention.

In the end, the author of the blog says that criminal justice and bail are complex. They are, but I have found that when people understand the complexity, they are quick to jettison the for-profit bail system as something that simply hasn't kept up.