Judge Eric Washington Speech About Bail and No Bail

Here's a pretty great speech given by Eric Washington, Chief Judge of the District of Columbia Court of Appeals: Judge Washington Speech

It's for the Brennan Lecture, put on by the Institute of Judicial Administration at the NYU Law School.

Although Judge Washington is wonderful to listen to anyway, from this, and a few other things, you can see that the judges who run our country's hlighest courts (including Justice Rabner, who gave the introduction) are starting to really get involved.

Bail Reform: Bully Activism at its Best?

Leave it to a bail insurance company to get so many basic things about bail utterly wrong. In a recent post on one of the main bail insurance sites, the company was bemoaning the recent federal lawsuits against money bail. In doing so, however, it makes a few fairly incredible misstatements that I can’t let go without comment.  

First, the insurance company tries to justify bail schedules by talking about how fair and “well thought out” they are. I’ve written extensively about bail schedules, studied bail schedules from across the country, and attended those meetings with the judges and others who create them, and the idea of a bail schedule being anything less than arbitrary and completely irrational is ludicrous. In my jurisdiction, the people who created the schedule picked money amounts out of a hat – no one could even remember what numbers started the whole thing off. And when I looked at all the other schedules here and in other states, I found the same thing. Arbitrary numbers, which were occasionally raised to account for inflation or perhaps headlines, with nobody having any idea about where the amounts even came from.

In fact, to say that the numbers are arbitrary is an understatement. I’ve seen and written about jurisdictions that have doubled every amount on their schedule in blanket fashion, and jurisdictions that halved every amount. Back in the 1920s, bail researcher Arthur Beeley wrote that the fact that the numbers were round numbers – like 5,000 or 10,000 – hinted at their arbitrariness. And he’s right. In fact, until you can argue rationally why $5,000 is the proper amount for an assault, when $4763.47 isn’t (without considering the individual characteristics of a particular defendant, and beyond questioning the 5,000 for other constitutional flaws), you’re just making both of them up. Fortunately in my jurisdiction, the judges eliminated the schedule without being sued, and they did it because the schedule was unfair, irrational, arbitrary, and the antithesis of the kind of individualized bail setting that had any hope of following the constitution. Yes, schedules are often created for benevolent purposes – I’ve written about this, too. But you aren’t paying attention if you haven’t noticed that they frequently evolve into unwieldly beasts that tend to keep more people in jail than out. Our old schedule was nearly 40 pages long, and I’ve seen them as long as 90, but some of the worst just list two numbers – one for all felonies and one for all misdemeanors. Overall, bail schedules are just another manifestation of a flawed and likely unconstitutional money-based bail system, but they have additional issues that make their extinction even more likely.

Second, the insurance company says that bail “is not about release.” Now I would think an entity making money from bail would know something about bail, but apparently not here. If you look deep into the history of bail you will see that the purpose of bail prior to the Norman Invasion was to avoid blood feuds. With the Normans, however, came an entirely new criminal justice system along with the building of jails, and from that moment on the purpose of bail forever shifted to provide a mechanism of release from those jails. Yes, court appearance was a legitimate purpose for setting financial conditions of release, but historically – both in England and America until the 1800s – those financial conditions were virtually always “unsecured” conditions, which meant that nobody had to pay anything up-front to get out of jail. In the 1800s, we ran out of personal sureties, flirted with secured cash conditions, and then ultimately tried the commercial surety business as a way to get bailable defendants out of jail. It didn’t work, which is why we’re here today. Bottom line, though, is that since the creation of jails, bail has always been about release. In 1951, the U.S. Supreme Court equated the right to bail with the “right to release before trial,” and “the right to freedom before conviction.” Is it any clearer than that? 

By the way, whenever an insurance company says that “bail is only about court appearance,” it’s showing its ignorance not only of what bail is and is not (it’s a mechanism of release, and it’s not money, which is a condition of release), but also of how bail has evolved to allow for release with conditions to provide reasonable assurance of both court appearance and public safety. The bail insurance companies’ complete disregard of safety as a legitimate public concern is one reason why we’re seeing bail reform to begin with. 

Third, the insurance company writes that the idea that money bail might discriminate against the poor “couldn’t be further from the truth.” As my dear friend’s delightful middle school daughter might respond, “OMG!” Doesn’t discriminate against the poor?! Are you nuts? It’s a money-based system, for goodness sake. Bail agents only help defendants with money. If defendants have money, they get out. If they don’t have money, they stay in. Really, this is something a child in grade school would know.      

And arguing that the money bail system doesn’t discriminate against the poor because so many poor people rely on the bail industry is like saying that separate but equal eating establishments weren’t discriminatory because all of the people eating in the “colored” restaurants were African Americans. I’m not trying to shock or offend by using a racial analogy, but I’m using it on purpose because in the post that I read, the insurance company not only made that argument – it also had the enormous audacity to write that money bail “supports racial and socioeconomic equalities.” That’s monumentally false, and anyone who believes it really has no place in criminal justice.

Overall, the insurance company piece provides a trifecta of fundamentally wrong statements about bail, leading me to conclude that this particuar company might be better suited to discuss something like health insurance. Or whole life. And, as usual, the way this goes is that once the insurance company makes wrong statements, people everywhere start correcting those statements. This not only makes them look bad, it also makes every single bail agent out there look bad, too. I hope it's just ignorance. Heaven help them if they're saying all this just to make money.  

36 Words

I’m not quite sure how this didn’t make the front page of the New York Times, because it’s the beginning of the end of money bail in America. The other day, in a federal court case in Missouri, a judge issued a declaratory judgment containing the following 36 words:

“No person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond.”

You can read about the case, and hear from my friend who filed it, Alec Karakatsanis, here: http://www.stltoday.com/news/local/crime-and-courts/settlement-in-federal-lawsuit-abolishes-cash-bail-for-velda-city/article_00e68a2a-5edd-5423-abac-1af69ae2f018.html.

These 36 words turn every single thing we’ve been doing in bail in America on its head. For over 100 years, we’ve been using money bail to detain people, both unintentionally and intentionally, and I predict now that it’s all going to end – beginning with these 36 words.

If you don’t believe me, send the words to anyone you know involved in state court bail-setting in America, and ask those people what they’d do if they had to abide by them. After an initial “holy crap” moment, they might say something like, “Well, how in the world are we going to keep those really dangerous people in jail?” The answer is that they’ll have to start employing empirical risk assessment to identify those “really dangerous” people, and then they’ll have to change their constitutional bail provisions and statutes to allow them to detain defendants based on risk. It’ll be an in-or-out system, with none of the arbitrariness and randomness of our current money-based system. It’s a wholly different release and detention scheme, and it has few of the hallmarks of bail that they’re probably used to.

So if you’re in a state that’s grown accustomed to secured money bail, accustomed to bail bondsmen, accustomed to insurance company lobbyists, accustomed to poor people in jail and only rich people out of jail pretrial – essentially, accustomed to the failed way that we’ve done bail and no bail for over 100 years in America, get ready to change. I’ve said it before. If you don’t change on your own, someone’s going to force you. And that force might just come from only 36 words. 

Bail for the Bikers -- Stack v. Boyle II?

Once upon a time in America, government officials arrested 12 persons and charged them with violating the Smith Act, which made it against the law to advocate overthrowing the U.S. government. The Smith Act mostly was used to prosecute communists, anarchists, and fascists – people we didn’t like and who scared us, and these particular 12 people were believed to be communists. A judge, looking at these 12 defendants, set each of their financial conditions of release (some would say their “bail”) at $50,000.

Looking at these bail settings in the 1951 case of Stack v. Boyle, the U.S. Supreme Court ruled that they were unlawful. In particular, the judge didn’t take into consideration any individualized factors that help make those bail settings non-arbitrary, the judge apparently based the amount on a single factor – the charge – which the Court expressly said was an arbitrary act, and that the judge didn't consider any evidence so that the amounts would be “reasonably calculated” to provide assurance of court appearance.

In his concurrence, Justice Jackson elaborated a bit. He said that the practice of admission to bail “is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial.” Instead, he wrote, “the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.” When presented with the argument that the bail-setting court fixed uniform blanket sums by merely looking at the charge and not at each defendant, Justice Jackson wrote, “If this occurred, it is a clear violation of [federal law]” and that to assume that each defendant was completely identical to each other defendant at least violated the law of probabilities. When presented with the argument that the bail-setting court used the amounts to keep these communists in jail on purpose, Justice Jackson wrote that such a use “is contrary to the whole policy and philosophy of bail.” In fact, we now have appellate court opinions that clearly state that setting bail with a purpose to detain people is unlawful.

Fast forward to this week, when government officials arrested 170 people in Texas and charged them with engaging in organized crime. When we use that charge, we mostly go after people we don’t like and who scare us, and these particular people happened to be in motorcycle gangs. A judge, looking at these 170 defendants, set each of their financial conditions of release (some would say their “bail”) at $1 million. You see where I’m going here, and it doesn’t take a genius to notice the similarities between one of our biggest bail cases in America from 1951 and what happened this week in Waco.

Honestly, if our own judges can’t keep track of U.S. Supreme Court precedent, how are we to improve? Today, we actually know how to deal with extremely high risk defendants. And if any – or all – of these defendants are extremely high risk, then they should be detained without bail. But if they’re high risk, setting money bail to detain them is not the answer.  

I’m weary of explaining why. That hasn’t always the case, as usually the explanation is a new thing to judges, who aren’t necessarily trained in social science research, statistics, or other fundamentals of bail that don’t deal with the law. But I shouldn’t have to explain to a judge what the U.S. Supreme Court has said, or is likely to say, about how to set bail.

The history and the law tell us that both bail (release) and no bail (detention) are lawful if you do them right. In this single act of setting 170 identical financial conditions, this judge simultaneously did both bail and no bail wrong.

     

If You’re Writing About Excessive Bail . . .

If you’re writing about excessive bail, I hope you’ll read this quick blog, which may give you some idea of how we're changing the typical excessive bail narrative.

For over 100 years, when they have actually addressed it, judges have been deciding excessive bail cases only one way. They take the amount – typically, a really high and arbitrary amount – and they compare that amount to other, equally arbitrary amounts in similar cases. The idea of deciding whether the amount is “reasonable” allows them to do this kind of fact-based analysis, and virtually all state supreme courts have said that excessive bail is defined as unreasonable bail.

The absurdity of this kind of analysis, however, is readily apparent by the fact that we actually have ALR articles that try to compile excessive bail cases, and those articles will often limit their compilation to, for example, “cases over $500,000,”  as if a set sum can adequately delineate where the proper analysis of reasonableness or excessiveness can actually begin.

Now, however, there's a movement to analyze excessive bail cases differently, and it doesn’t involve any radical changes; indeed, it only involves getting back to the basics of the test for excessiveness itself.

First, though, realize that any excessive bail discussion can now rightfully include both federal and state law in the same document. Whereas once bail scholars used to debate whether the bail clause of the 8^th Amendment to the U.S. Constitution was “incorporated” against the states, now everyone seems to agree that the Supreme Court believes that it is. Your cite on this point will be a bit strange, however, as you’ll likely be citing to footnote 12 in McDonald v. Chicago, a Second Amendment case, and that footnote’s reference to Schilb v. Kuebel as your authority.  Even so, it’s a big deal, because now at least you have a decent federal standard to work with.

That standard comes from United States v. Salerno, in which the Supreme Court said that excessive bail involves a balancing test – i.e., balancing the government’s proposed conditions of release or detention with the perceived evil, or lawful purpose. This test, alone, opens the door to many more excessive bail arguments, once you realize that conditions or bail, or limitations on pretrial freedom, may include more than just financial conditions, and may only lawfully have one of two purposes – court appearance or public safety. This last requirement is extremely important. Bail set to punish is an unlawful purpose, and bail set to detain is equally unlawful. It’s like setting bail to impress your friends. That seems absurd, but we need to start thinking of conditions of bail (i.e., release) set to detain someone as being equally absurd and unlawful.

If you’re writing about excessive bail, realize, too, that since virtually every state defines excessive bail as “unreasonable,” we now have some pretty good research showing that secured money in most, if not all cases, is excessive because it's unreasonable. For example, we have research showing that setting an unsecured financial condition will get you the exact same results for public safety and court appearance as setting a secured financial condition, but will lead to less unnecessary detention. If you get the same results from a less restrictive condition, it simply wouldn’t be reasonable to set the more restrictive one, and thus the more restrictive condition should be deemed excessive. The essence of the Excessive Bail Clause is to keep the government from doing things to defendants “just to make sure.” Setting a secured financial condition violates the Clause, however, by exceeding the standard for setting conditions generally, which is that they can only be set to provide “reasonable assurance” or either public safety or court appearance, and not complete assurance or even “extra assurance.”

Basically, any research that shows that any condition of release doesn’t work – that is, that the condition doesn’t further the lawful purposes of bail – would argue for that condition to be declared unreasonable and thus excessive. But in bail, we have even more important research to help us. We now have research showing that if a judge sets a secured financial condition of release on a lower risk defendant, and if that lower risk defendant stays in jail due to his or her inability to find the money, bad things start to happen. In fact, the longer they stay in jail, the more likely they are to harm the public and not to come back to court. Now, if you’re a judge setting a condition of release to protect the public and get someone to return to court, would it be reasonable to set a condition of release that ended up doing the opposite of what you intended? Absolutely not. Would it thus be excessive? Absolutely. 

Finally, if you’re writing about excessive bail, you’re going to have to deal with what I call the “unfortunate line of cases,” which is that line of cases that says, essentially, a financial condition isn’t excessive simply because someone can’t afford it. This line of cases is unfortunate because it's a complete aberration to the legal and historical notion that bail should equal release. The line was created at a time in America when we were running out of personal sureties, and we had not yet tried commercial sureties. We had tons of bailable defendants being detained unintentionally due to their lack of sureties and their inability to afford the financial condition themselves. Apparently, back then, judges were pretty skittish about flat-out releasing all bailable defendants (even though we had been doing that very thing for the thousand-year period before), and they didn’t have any other alternatives – i.e., no supervision, no risk assessment, no non-financial conditions of release, no research, etc., to alleviate their concerns. The fact is, though, today we have all the things necessary to encourage judges or legislatures to completely overturn this entire line of cases. Indeed, the cases have been overturned through the enactment of a single sentence in both the D.C. and federal bail statutes, which both say, essentially, that money cannot result in the pretrial detention of the defendant.

Bail reform in America means that we have to get back to basics in our legal foundations. Just remember that if something is unfair, unreasonable, irrational, or arbitrary, it’s likely unlawful. Because money at bail is all of these things, it’s simply a matter of time before it’s gone.     

Two Histories of Bail?

When I started researching bail, I noticed that there wasn't much on the history of bail. Accordingly, I started reading everything about the history, and I ended up writing quite a bit about it. It turns out that the history tells you some pretty important things, like why we've needed bail reform and how to avoid needing bail reform in the future.

Yesterday I noticed another published "history of bail" in Springer's Encyclopedia of Criminology and Criminal Justice. I couldn't wait to read it, especially since it was written by what I call a "bail insurance company sympathizer." I won't go into all the gory details of that right now, but maybe I will in the future if I have to.

In any event, I was anxious to see what the bail industry take on the history might be. After all, if you look at the history of bail, the commercial surety industry looks pretty bad. We only created that industry in 1900 (ironically because we thought it would reduce the numbers of people in jail who couldn't get out through the previous personal surety system), and by 1920 we had our first decent paper (written by the Dean of the Harvard Law School and a future Supreme Court Justice) saying that we need to figure out ways to stop using bondsmen. Ever since, they've been causing chaos with release and detention in America. Everyone from bail scholars and historians to police officers and judges have criticized them, and whenever anyone writes anything good about that business, it becomes pretty clear that the author was either paid off or didn't do his or her homework.

The bondsmen's history probably leaves out the fact that several states have completely eliminated them (the industry continues to try to get back into those states using some very slippery tactics), ignores the fact that the ABA national best-practice standards on pretrial release and detention calls for the abolition of the commercial surety industry, and uses the same four or five studies (most of which have been rendered useless through a Department of Justice data advisory, but that's whole other blog) to try to convince people to keep using them.

The bondsmen's history probably doesn't mention anything about the rampant abuse in the industry (documented starting in the 1920s), with commercial sureties trading bonds for sex, failing to pay for forfeited amounts, bilking clients, and knocking down the doors of random houses looking for what they call their "skips." It probably won't focus too much on their intense affiliation with ALEC, the same black bag policy group that fought against protecting children from cigarettes, that works hard to disenfranchise voters, and that continues to try to get courts across America to use commercial bail bondsmen no matter how many people it harms. And I doubt it'll go into much detail about just how much money the insurance companies make from this whole arrangement. So much money, in fact, that they have no problem spending millions on lobbyists to make sure that our system of bail continues to generate a profit.

So I was looking forward to reading it, you know?

The problem is that there was no way to buy just that article. Apparently you have to buy the whole freakin' encyclopedia just to read about the history of bail.

So . . .  I guess I'll leave a proper critique of the substance for another day. For now, just realize that there are two histories out there -- and they might not look exactly alike. I'll let you all decide which to believe. The histories that I helped to write are free, and you can find them in both our "History of Bail" document or in my recent "Fundamentals of Bail" document, both of which are on the National Institute of Corrections' and the Pretrial Justice Institute's websites. The bondsmen history is for sale at the low price of only $4,350.00 on the Springer Publishing website.

That kind of seems like a lot of money, but really it makes a lot of sense. Bondsmen, bail insurance lobbyists, and bail industry sympathizers don't think twice about making all of us pay big money simply to get out of jail, when freedom and liberty are our basic human rights. What's $4,000 for a couple of books?

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!