Wednesday, November 26, 2014


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.  

Thursday, November 13, 2014

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