Bail, Pretrial Justice, and Money

 Bail, Pretrial Justice, and Money

This is a recent entry from a blog sponsored by the Bozeman (Montana) Daily Chronicle. At the end of this blog, I’ll give you the rest of the story and tell you how the motion panned out, Paul Harvey style.  

County attorney wants accused Taco Bell shooter's bail increased

Whitney Bermes, Chronicle Staff Writer
Posted: Jan. 25, 2013 10:40 a.m.

Gallatin County Attorney Marty Lambert thinks the bail for a man accused of a shooting at Taco Bell is too low. So he wants it increased fivefold.

Nathaniel John Budd, 22, was arrested Dec. 1 after police allege he shot a woman twice in the Taco Bell parking lot following an argument.

Budd was held in the Gallatin County jail on $100,000 bond. He was released on Jan. 7. 

In a motion filed Jan. 22, Lambert asked District Court Judge Holly Brown to increase that bond to $500,000.

You can see the rest of the story at: http://www.bozemandailychronicle.com/blogs/beyond_the_blotter/article_63d75144-6716-11e2-9689-0019bb2963f4.html. 

It illustrates three common points of misunderstanding in the administration of bail, which deal with (1) constitutionally valid purposes of conditions on pretrial release, (2) money and public safety, and (2) the arbitrariness of money bail.

The story reveals that the defendant had been arrested about a year before with a 45 caliber revolver. When he was ordered to give up his weapons after this recent arrest, however, he did not surrender any revolver. Moreover, police found other rifle ammunition in his car that didn’t match any of the rifles that he surrendered. Clearly, authorities believe that he is holding out on surrendering his full collection of weapons. Accordingly, the county attorney wants the monetary condition of release raised from $100,000 to $500,000.

The first question that must always be asked in conditions (including financial conditions) at bail cases is “why.” In other words, what is the constitutionally valid rationale for seeking an increase in the amount as a limitation on pretrial freedom?  Bail must have a valid purpose, and these days the only purposes constitutionally recognized as valid are risk to public safety and for failure to appear for court. If the defendant actually breached one of his bail conditions (nobody has said he has, yet, they only believe it to be so) then Montana can certainly revoke the bond under its existing statutes. And clearly, if anyone dared to say that the increase was in some way punishment for their belief that the defendant lied to authorities and didn’t surrender his weapons, then that would be a clear violation of the constitution. Nobody has said anything about the defendant being a risk for flight – after all, he is already out on bond and is apparently watching all this from relatively close sidelines.

Which leaves us with public safety. Obviously, if everyone believes the defendant has access to weapons, then prosecutors might make a pretty good argument for why they feel more restrictive conditions of release might help to further public safety, a constitutionally valid purpose for limiting freedom. The problem is that money bail, in Montana as in most other states, cannot be forfeited for breaches in public safety. It can only be forfeited for failure to appear. Right now, the defendant is out on a $100,000 bond. If he commits another crime tomorrow, that amount will not be forfeited. If it is raised to $500,000, and he commits a new crime, that amount will not be forfeited. It is only lost if he does not return to court at the proper time. You can thank the commercial bail bond industry for this fairly common part of nearly every state’s bail law.

Accordingly, legally speaking, money has nothing to do with keeping anyone safe. But what does the research say? Well, it turns out that loss of money has never been demonstrated in any way to protect the public either. One only has to look at the headlines to see that crimes are committed by individuals on all types of release, including those secured with high amounts of money. Maurice Clemmons killed four police officers while out on a fairly high money bond. Others have done the same thing while out on much less. Beyond the headlines, however, are numerous social science studies attempting to find a link between public safety and money, but there is none. That is why the national best-practice standards on pretrial release say that courts should never – I said never – set financial conditions of bail in order to protect the public.

In fact, the only way that money could protect the public is if a court were to set it so high that the defendant could never post it at all. Sidestepping the fairly serious constitutional questions surrounding this practice – a practice that has been questioned, if not condemned by scholars in this country for over five decades, the fact is that if the $500,000 bond is a commercial surety bond, then there’s always a pretty decent chance that the defendant will be released. That’s because even though everyone believes that bail bondsmen charge ten percent on every bond they write, often they lower that percentage. Indeed, I have seen instances of bondsmen helping a defendant to get out of jail with no money down and on an installment plan to eventually pay the fee. And remember, if the defendant commits a new crime while he is out, nobody is out any money anyway.   

At some point, all of this raises the very important issue of the arbitrariness of money. I mean, why did the attorney ask for $500,000 and not $1 million? Why not $10 million? In my humble opinion, the arbitrariness of money bail will be its ultimate downfall. Arbitrariness in setting nonfinancial conditions at bail typically stems from finding no rational reason for connecting the conditions to individual defendants. Financial conditions suffer also from arbitrariness by degree; even if a judge may be able to articulate why he or she feels that money generally is an appropriate condition of release for a particular defendant, that judge typically is unable to explain why one amount has been chosen over any other.

So in the end, you have a requested increase of money that might not be tied to any constitutionally valid purpose for limiting pretrial freedom. Moreover, even if it is based on public safety concerns, the request is also potentially irrational because it money is not legally, empirically, or even logically tied to public safety. And, unless there is some good reason for one amount over another (or even for the initial amount, for that matter) you have a request that is also arbitrary. In appellate work, irrational and arbitrary actions by government officials are typically deemed unlawful under multiple theories of law.

There are solutions to this dilemma, which I will write about in future posts. Until then, it should be enough that we at least fully understand what we are doing. If we can’t act rationally and non-arbitrarily in these big, high profile cases, how can we possibly do so with the vast majority of bail cases, in which hundreds of dollars can mean the difference between pretrial freedom and jail?

And now . . .  the rest of the story. The judge denied the request because prosecutors didn’t provide any proof the defendant still had any firearms. Oh well, not everything is exciting.  Good day.

Bail, Pretrial Justice, and Federal Detention

The U.S. Department of Justice just issued its “Pretrial Detention and Misconduct in Federal District Courts, 1995-2010,” and it points to an alarming increase of federal pretrial detention – from 59% of defendants in 1995 to 76% of federal defendants in 2010. This number is a bit misleading, simply because defendants can be (1) detained for some part of the pretrial phase, (2) detained for the duration of the pretrial phase, or (3) never detained. As to the extremes, this report indicates that defendants never detained declined from 41% to 24%, while the number detained for the duration of the case increased from 42% to 64%. The trend seems clear; fewer people released and more people detained.

The report also suggests that an explosive immigration caseload has been a primary contributor to the increase in detention – a huge increase in immigration defendants with cases in federal courts (664%) contributing 60% of the overall increase in detention, despite the fact that detention rates for immigration cases did not rise nearly as much.    

Of course, immigration cases pose some of the biggest dilemmas for persons interested in bail and pretrial justice. These defendants are only accused of crimes, and they are allowed the benefits of the constitutional rights that every American enjoys; however, I have never seen an immigration case that did not somewhat inherently raise the issue of the risk of failure to appear for court. Perhaps this accounts for the fact that nearly 65% of federal defendants detained pretrial in 2010 had no prior arrest history. In a typical non-immigration case, no prior arrest history often means some form of pretrial release.    

Despite this possibly inherent flight-risk conundrum, I have seen numerous cases with immigration defendants who would seemingly pose little or no risk to public safety or failure to appear for court when measured by any objective pretrial risk instrument. It is interesting to me that ICE itself allows defendants to bond out of ICE custody for immigration proceedings, apparently for all the reasons the courts have articulated for any other non-immigration case.

In the past few years, federal officials have recognized the rising federal detention rate and have begun working on evidence-based methods to increase releases without sacrificing public safety or court appearances. This may account for the fact that federal pretrial detention actually peaked in 2008 and is now slowly declining. And, by the way, the court appearance rate for those defendants actually released has risen from 97% to 99% in the last fifteen years, and the public safety rate (no new arrests for felonies or misdemeanors while on bond) has stayed right around 98%, too. Misconduct based on technical violations has increased, but that's a topic for another day. 

Remember the words of conservative Justice William Rehnquist, writing for the Court in United States v. Salerno: “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”  You can decide for yourself if a 76% detention rate is what the Chief Justice had in mind.

The full report is here: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=4595.           

Conference of Chief Justices Endorses Bail Reform

The Conference of Chief Justices, made up of the highest judicial officers in the fifty states, the District of Columbia, and the various United States territories, has officially endorsed bail reform and pretrial justice in America. Specifically, it “commends and endorses” the Conference of State Court Administrators’ policy paper on pretrial release, and it joins with that group “to urge that court leaders promote, collaborate, and accomplish the adoption of evidence-based assessment of risk in setting pretrial release conditions and advocate for the presumptive use of non-financial release conditions to the greatest degree consistent with evidence-based assessment of flight risk and threat to public safety and to victims of crimes.”

The Conference of Chief Justices is a pretty important group, and its policy is clearly at odds with that of the commercial surety industry, which advocates for presumptive release on financial conditions. This new policy was a catalyst for Judge Lippman's call for an examination and overhaul of New York’s bail laws, and it will undoubtedly nudge judicial officials in other states to do the same.

You can read the resolutions here:

http://www.pretrial.org/OurServices/Advocacy/AdvocacyDocuments/CCJ%20Resolution%20on%20Pretrial.pdf. 

Bail Bondsmen Response to Proposed NY Reform

Here is a typical statement by commercial bail bondsmen when it comes to rational measures toward bail reform. “Catastrophic.” Really? Four states have completely eliminated bondsmen, and I don’t read about any catastrophes there. Washington DC does not use commercial bail bondsmen, and its pretrial court appearance rates and public safety rates are high.     

 

Notice that bondsmen say that “they bring important benefits for society,” but they give no specifics on what, exactly, those benefits are. Perhaps the answer lies in the first statement: “We strive for personal profit.”

 

So there you go. We all benefit from bondsmen striving to make more money. I’m sure if, given the time, there might be some macro-economic rationale equating personal profit with some yet-to-be defined societal benefits, but maybe not. Maybe, instead, we have been right as a nation that for 100 years has called for removing profit from bail. Since America has allowed persons to profit off of the misfortunes of defendants, we have become a nation with a pretrial detention rate that is three times the world average.  

 

 

WNYC News

Bondsmen Pan Bail Overhaul Plan

Wednesday, February 06, 2013

By Ilya Marritz

A proposal by New York's top judge to make big changes to the bail bonds system for criminal defendants is getting bad reviews from the bail industry.

Chief Judge Jonathan Lippman said in his annual State of the Judiciary speech Tuesday that judges should order supervised monitoring for nonviolent offenders, when possible. And when bail is required, Lippman wants not-for-profits to replace for profit lenders.

George Zouvelos, president of the New York Professional Bail Bondsmen and Agents, said his members will fight the proposals.

“We strive for personal profit,” Zouvelos said. “The professional bail bondsman brings important benefits for society. Changing the effective system of the status quo would be not only a mistake but catastrophic.”

Zouvelos said criminal defendants are often treated badly in the overburdened courts system, but the bail bonds industry is not the problem.

He also denied Lippman’s claim that the bail bonds industry fails to meet the needs of low-income New Yorkers who are unable to meet even low bail requirements.

“I do $1,000 bonds and $750 bonds by the ton,” Zouvelos said.

There are thought to be about 70 active bail bondsmen in the state.

New York Bail Reform

When the Chief Judge of an entire state says that changes need to be made, it makes big news. New York has always had the problem of not explicitly addressing public safety, but what is most encouraging is that Judge Lippman is also talking about the other side of the bail coin – the unnecessary pretrial detention of low risk defendants who simply lack the funds to get out of jail.

The whole New York Times story is at the link – I only reprinted a couple of excerpts.

http://www.nytimes.com/2013/02/06/nyregion/judge-jonathan-lippman-seeks-to-overhaul-bail-process.html?_r=0.  

Top Judge Says Bail in New York Isn’t Safe or Fair

By RUSS BUETTNER

Published: February 5, 2013

Castigating the bail process in New York as unfair to the poor and susceptible to allowing dangerous suspects to be set free, the state’s top judge called on Tuesday for an overhaul of the bail system that would bring the state closer in line with the rest of the country.

In his annual State of the Judiciary speech in Albany, the chief judge, Jonathan Lippman, said New York was one of only four states that did not allow judges to consider public safety when making a bail determination. The main criterion used by judges is the risk of the defendant’s not returning to court for trial.

“As a result, defendants may be put back on the street with insufficient regard to public safety, with possibly catastrophic consequences,” he said. “Few, if any, would seriously argue that judges should not consider the safety and well-being of people on our streets or in our homes when making bail decisions.

“This makes no sense and certainly does not serve the best interests of our communities and our citizens.”

Conversely, Judge Lippman said the bail system was stacked against those accused of minor crimes, keeping them in jail at great personal hardship and weakening their resolve in plea negotiations. The judge called that outcome “unfair” and said it “strips our justice system of its credibility.”

Judge Lippman’s proposal is in line with trends across the country to overhaul bail so that it is based more on an analysis of the risk that defendants pose to public safety, rather than their financial well-being. The United States Conference of Chief Justices, of which Judge Lippman is a member, last week adopted a resolution with similar goals.

Bail Transparency, Part II.

Here is a case in point for the need for judges to make a clear record at a bail hearing.

http://news.yahoo.com/blogs/sideshow/giggling-woman-flips-judge-bird-judge-not-amused-210739814.html.

The young lady in this video was rude and may have even deserved her sentence for contempt of court (although I've come to believe that government officials should wear an extra thick skin when they are allowed to wield so much power). The problem is that the judge, apparently angry over her flippant attitude and possibly racist remark, first summarily doubled the financial condition of her bail from $5,000 to $10,000. Was it because the judge read some new information indicating a higher risk of flight, or was it because he was angry and wanted to punish her? It matters because increasing a monetary condition due to increased risk of flight is okay, but setting bail to punish a defendant is unconstitutional.  This is the sort of thing that goes on in courtrooms every day, and the public rarely gets to see how loosely judges sometimes act when it comes to money at bail.    

Richard III and the Right to Bail

No time for much of a blog this week, but today I noticed a number of newspapers reporting on someone finding the bones of Richard III of England. Unfortunately, many of those articles also say that Richard III introduced a right to bail in England. That’s not true, as explained in the following well-researched post.

http://www.susanhigginbotham.com/blog/posts/richard-iii-and-bail/. 

Cheers!