Friday, August 22, 2014

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.