Sunday, June 22, 2014

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:

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.

Friday, June 13, 2014

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.

Monday, June 2, 2014

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

Here is yet another case that's a symptom of our dysfunctional bail system:

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.