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