What a Difference Five Years Makes!

Back in 2012, the bail insurance companies released a "PR Web" article saying, "Judges Confirm That Bail Bond Agents Play an Important Role in the Criminal Justice System." You see, some bail insurance dudes apparently went to the American Judges Association Conference that year, conducted a "survey," and concluded that 90% of judges say bail agents play an important role. The article is fascinating, as the insurance dude describes handing out his unbiased survey along with several hundred "I Love My Judge" buttons. I think that's how Pew does it, right?

Oh well, cut to 2017, and you can read the new American Judge's Association Resolution Number 2, in which the association urges judges to, among other things, "call for the elimination of commercially secured bonds at any time during the pretrial phase."

Ouch.

So, I think the lesson is twofold. First, the ABC/PBUS strategy of fighting everything is really backfiring. Second, don't necessarily believe what you read from the bail insurance dudes.  

Baltimore Kid Faces Life -- What About the Judge?

Did you hear the one about the 18-year-old kid who bashes a car windshield in Baltimore with a plastic cone, turns himself in, and the judge sets his financial condition of bond at $500,000?

Here’s one of the many news stories about it: http://www.nbcnews.com/storyline/baltimore-unrest/so-much-money-baltimore-teen-who-surrendered-held-500-000-n351606.

Judges can only set conditions of release for two constitutionally valid purposes – court appearance and public safety. Now, since the kid turned himself in, we have to assume he wasn’t the biggest flight risk, so what about public safety? Well, the problem with public safety is that in virtually every state, Maryland included, you either can’t forfeit a financial condition for new crimes or the law allows a surety to be exonerated from any forfeiture so long as the defendant is in custody. Setting money for public safety when you don’t lose the money for breaches in public safety is irrational, and thus likely unlawful under multiple theories of law that require, at a minimum, rationality by the government. Moreover, after decades of research, we have never shown any link between money on a bail bond and public safety. Quite simply, money won’t keep you safe.

So why $500,000? Was it to punish the kid? If so, it was unconstitutional. Was it to teach him or others a lesson? If so, it was unconstitutional. Was it to keep him in jail? If so, it was unconstitutional. Was he given any kind of a decent due process hearing before being detained through an unattainable release condition? If not, it was unconstitutional.

Which raises the important question; what do we do when judges violate the law? We’re pretty keen on making sure everyone else pays when they violate the law. For example, this kid faces life in prison for breaking that windshield. But what about the judge? Is it too much to ask that judges simply follow the United States Constitution? And what should we do when they don’t? 

Commonwealth v. Carman -- The Kentucky Supreme Court's 20 Pages of Trees

In the category of "can't see the forest for the trees" is a Kentucky Supreme Court opinion discussing bail in that state. Here's a link to the opinion:

http://opinions.kycourts.net/sc/2013-SC-000684-CL.pdf

You may recall that Kentucky has no commercial sureties; indeed, that state declared them unlawful in the 1970s. Nevertheless, Kentucky still apparently relies on money, as this case amply illustrates.

If you read the opinion, you'll find yourself digesting about 20 pages of trees -- details about when judges can set bail, alter bail, do things ex parte (hint: as a rule of thumb, it's universally hardly ever to never) -- but if you get that deep into it, you'll lose that elusive forest. I'll use the easiest defendant, one Shannandoah Carman, to illustrate.

Carman was assessed by the pretrial services program to be someone who could be released on his own recognizance (i.e., without paying a secured financial condition). The judge on "duty" that day nonetheless decided instead to condition Carman's release on paying $1,000 in cash, and set his arraignment for the next day. The next morming, however, a new judge, who was apparently neither the new duty judge nor the judge who would ultimately be assigned the case, took it upon himself to release Carman on his own recognizance, meaning that the judge either changed the financial amount to nothing, or that he made the amount what we call an "unsecured amount," meaning that it only had to be paid on the back-end in the event that Carman didn't show up for court. This change, whichever it was, allowed for the immediate release of Carman because he was no longer required to pay money up-front to get out of jail.

This angered the prosecutors (and possibly the first judge), and thus began the long appeal over what the second judge did and how he did it. In the end, you have an opinion that lays down some rules about what judges can and can't do in Kentucky. But let's step back and check out that forest.

When the first judge set a cash bond, he did so against the recommendation of the pretrial services assessment (which apparently stated that Carman could be safely managed in the community, and that a cash condition would not help in any way), the pretrial research (which shows that money doesn't matter for either court appearance or public safety, that secured bonds only detain people unnecessarily, and that even short-term detention periods of a day or two can make certain defendants and society less safe for no good reason), the national best practice standards (which dissuade judges from using secured bonds altogether), and the law (which says that adding a secured financial condition to a bond "just to be sure" is excessive and the resulting detention is a violation of procedural due process). By simply releasing Carman with no financial condition (or by changing the secured financial condition to an unsecured one, if that's what happened) the second judge actually did substantively what was right, just, and lawful. Something we all really want our judges to do.

Now, he didn't do it the way it he should have (that's more of the detail found in the trees, and concerning this particular issue the trees start to appear a bit weird and sleazy), but the point is that if the first judge actually wanted to follow legal and evidence-based practices at bail, he would have set a recognizance or unsecured appearance bond to begin with. The opinion doesn't say so, but I'll bet five dollars that money wasn't the only condition of release for Carman; there were likely a bunch of what we call non-financial conditions that would do quite well at providing reasonable assurance of public safety and court appearance. But, as you all know by now, money is the thing that keeps people in jail, starts all the bad things happening, and triggers lawsuits and appeals.

Overall, this "forest" in this case illustrates something that happens a lot in America. Judges who don't know better (or don't care) will cling to outdated and potentially unlawful practices due to custom, habit, and, sometimes, outspoken prosecutors.

Which reminds me, what about the prosecutors in this matter -- the ones who were ethically bound to "do justice" in the case and who argued vehemently throughout this process and appeal for the cash condition on Carmen's bond? Well, in the end, they dismissed all charges against Carman. Now just think about that for a minute, and realize that there's something catastrophically wrong with a system that would tolerate keeping a person in jail by using money, endure arguing, ad nauseam, that the person "needs" an irrational, arbitrary, and destructive condition of release, like money, and then condone the ultimate dismissal of that persons's case at some later date without anyone even hinting at the injustice that would have occurred had Carman not been released pretrial.    

Kentucky is rightfully being hailed as a state that is further along than most when it comes to bail reform. Nevertheless, as this case readily shows (and, really, like everywhere else), it still has a bit further to go.