Changing Bail Laws

My new paper is titled, Changing Bail Laws, and you can find it here.

It again answers the question, "If we change, to what do we change?," and is designed to be used along with my earlier paper, Model Bail Laws. It's shorter, though, so it simply raises the issues, and only solves the ones I thought were most important (like the need for a charge-based detention eligibility net). The longer paper is still helpful, and can be thought of as a template to show states the kind of detail work necessary to answer all the questions and to justify pretrial detention provisions. It is my model. States can come up with a different model, but I expect them to justify it to the same extent.

I have had several people ask me what they should change in order to accomplish a moneyless system of pretrial release and detention. This paper is my answer.

If I say to you, "California's SB10 created a detention eligibility net outside of its constitutional boundaries and a further limiting process that is subjective, resource-driven, and ineffective," and you don't know what I'm talking about, then please read these two papers. This, in my opinion, is the future of the field.

Al Jazeera Video About Bail Reform

Here's a little video about bail reform from Al Jazeera.

I've been watching posts from the bail industry for a long time, and I can tell you that there is nothing in this video that it'll like. It was a bit of a gang fight, with ABC losing due to its inability to concede certain basic facts about the money bail system. 

So . . . I assume that even though someone from ABC was on the show, ABC either won't mention anything about it, or it'll start attacking Al Jazeera and the others personally.

ABC's intentional strategy to argue and fight everything, rather than to think of solutions, is the cause of all of this. Bail agents, this is your future.

The Definition of Bail

As more and more states get involved in bail reform, it's good to remind everyone once again about the legal and historical definition of the word "bail." If you Google my name and the title of the document "Fundamentals of Bail," you can read a 100 page justification for why the correct legal and historical definition of bail is a process of release. The process is always conditional, by the way, as even the broadest definitional process will always include a condition to return to court.

The purpose of bail is to provide a mechanism to release people pretrial, just as the purpose of "no bail" is to provide a mechanism to detain people. It's technically improper to say that a purpose of bail is to bring people back to court or to make the community safe -- if anything, these are purposes of conditions of bail or release, or limitations on pretrial freedom.

Bail is not money. Money is a sub-condition of the return to court condition. In secured form, money is a condition to precedent to release, which is why it often keeps people in jail. Some places define bail as money, and you can't really blame them because money was the only sub-condition attached to the return to court condition we had for 1,500 years. We defined  "bail" as money in Colorado for decades until we actually studied bail, and then we changed the definition to better (t's not perfect, mind you) reflect the process. Some states, when making changes to their bail laws, have actually replaced the word bail with the word release. Just recently I read a Missouri court rule that says all bailable defendants have a right to release pretrial. That's the correct way to express it.

If you define bail as money, lots of things will be confusing to you. For example, if you say you want to get rid of "bail," meaning money, other people from other states will wonder what in the world you're talking about because they actually have a right to bail in their constitutions. They'll argue with you and you'll be confused as to why. The bail industry has been trying to use this confusion convince people that the purpose of bail reform is to limit or eliminate the constitutional right to bail. That just ain't true.

As another example, you'll  be confused by what the U.S. Supreme Court has said about bail over the years. When the Court equates the "right to bail" with the "right to release" or the "right to freedom before conviction" as it did in 1951, it just won't make sense if you think bail is money.

As yet another example, you might even be confused by the national standards on pretrial release and detention, which, correctly, describe money as a condition and do not equate it in any way to the process of release.

If bail is release, then the right to bail must be . . .  wait for it . . . a right to release! That's true, too, even though a heck of a lot of bailable defendants don't get released.  Usually, when bailable defendants aren't released, we see bail reform. And we're seeing it now, but it took a heck of a long time to figure out what to do about it. That's due to two things most people simply don't know about bail. The first is called "the big change," which relates to a change America made from English law, and you can read about it in my Model Bail Laws paper. The second it what I call the 8th Amendment loophole, which is based on a line of unfortunate cases, which you can read in my Money as a Justice Stakeholder paper. That loophole, by the way, is being eviscerated by the latest wave of cases against money bail that simply avoid any 8th Amendment claim whatsoever.

I'll leave those for another day. For today, a "basic" of bail is to know it's definition. And that definition is this: bail is a process of conditional release.

By the way, if you're relying on ABC to help you with this bail reform movement, you may want to send them my papers. They tried to define bail in a recent court case, and the federal judge said they got it wrong. Not understanding the proper definition of bail doesn't say much for the people representing you in bail-related matters. That's probably the biggest understatement I could ever possibly make, but that's where we are.

Changing Constitutional Bail Provisions: Pretrial Release and Preventive Detention

I'm just adding this post to, once again, remind everyone that there are certain issues a state must examine before deciding to change a constitutional right to bail provision, just as there are issues that a state must address when changing them. Whatever a state does to a constitutional right to bail provision involves drawing a line between release and detention, and that requires legal justification.

My latest paper provides a model for states that are asking: (1) whether to change their right to bail provision; and (2) if so, to what? More importantly, it shows how to legally justify the change.

Here it is, called "Model Bail Laws." It assumes that the reader will read Fundamentals of Bail and Money as a Criminal Justice Stakeholder first, and those are cited early on in the Model Bail Laws paper.

Once again, if a state changes its right to bail provision, it will need to legally justify it. The only way to do that is to work through the issues presented in the model in the paper. I don't require states to necessarily adopt my model, but courts will require that they justify theirs much like I justified mine. If they don't, the new provisions run a real risk of being struck through any number of legal theories.

Not to get too complicated, but the same issues that go into changing a bail provision will illuminate the fact that many existing detention provisions are currently unlawful, simply because those provisions were likely justified through assumptions that are false today.

The model in my paper is kind of long and a bit complex, but if anyone calls I'll help to explain it.

Bail Agents, This One’s For You

Well, I’ll get right to it. In my last post – which I thought might be my last post – I said I might come back if somebody made me mad. And guess what? Sure enough, somebody did.

No doubt you can guess who. Yes, that’s right, it was a bail insurance company lobbyist, who insisted on going down to New Mexico and trying to trash a project I was involved with years ago here in Colorado. It didn’t work, of course, because the people in New Mexico called me and a couple of others here in Colorado and we told them the truth, something that the insurance lobbyist probably had a hard time conveying in his presentation. 

Bottom line is that I’m coming back, and I’m going to go at this thing full time. Bail agents, you should realize by now that the insurance companies are doing you no favors anywhere in America. By rehashing the same tired and discredited arguments and by misrepresenting the law and the research to keep the status quo, the insurance companies are – perhaps unintentionally – sealing your fate. 

Here in Colorado, everyone can point to the single event that triggered all of us getting together to change bail. It was when an insurance company lobbyist came in from out of town and did what he was paid to do – keep the money flowing to the insurance companies. The problem is that by doing so, he turned people against everyone involved in commercial bail, including you bail agents. The insurance companies are doing the exact same thing today in other American states, and unless those companies radically change their tactics, you can bet that bail agents simply will not exist in any form in America in the next 10 years.

I used to think that the bail insurance companies might ultimately see the real issues and change their strategy to actually help you agents, but now I see that they are too consumed with the free money (that you all give to them) to do you any good. The future of bail and no bail in America simply does not include the kinds of high dollar amounts that seemingly require insurance company backing. And because they don’t belong in any pretrial future that I can think of, insurance companies will continue to argue to keep things the same. By doing so, however, they’ll continue to lose. And as they lose, they’ll most definitely take you down with them.

As a bail agent, I know that you rightfully take some pride (as we all do in pretrial justice) in knowing that you are helping to uphold the rights embodied in both the states’ and the federal constitution. To stay in such a noble pursuit – to be able to feel the same sense of constitutional pride for the next 100 years – you simply must see the insurance companies for what they are and what they are not. Simply put, they are the method of your demise. They are not your friends. 

The Future of Pretrial Justice in Colorado

Somebody recently told me that I should set down in writing what we still need to do in Colorado for pretrial justice. We started down this path several years ago, just learning about bail and pretrial reform. After a year or so of formal study, the Bail Subcommittee of the Colorado Crime Commission made three recommendations of how to improve the state's bail laws. Those recommendations were ultimately incorporated into the bills passed in 2013 and 2014.

Unfortunately, those recommendations covered only what we call "bail," or release, and didn't have anything to do with what we call "no bail," or detention. Pretrial justice involves both "bail" and "no bail," and to make improvements to "no bail," we were going to have to change not only the statutes, but also the constitution. Colorado's constitution, like most in America, makes the detention decision hinge on top charge, rather than on empirical risk of pretrial misbehavior, which automatically means that the constitution is outdated and in need of revision.

Colorado is like about 19 other states with preventive detention in their constitutions. Preventive detention is the ability to hold defendants without bail in cases of extreme risk. Specifically, the Colorado provision only allows a judge to detain a defendant if he or she has the requisite charge (a crime of violence), along with some showing of danger (significant peril), and some precondition (like while on probation, parole, bail, or after certain other felony convictions). The prosecutors and judges I know understand that these three elements make using the Colorado preventive detention provisions extremely rare. We hardly ever see a defendant with all of these things -- charge, danger, and precondition -- but we still have money, so basically judges deal with extremely high risk defendants by setting million-dollar cash only financial conditions.

Here's my best illustration. Not too long ago, a defendant named Bruco Eastwood, a guy who had mental illness (we know this because later he was declared not guilty by reason of insanity), took his dad's hunting rifle, went down to a local middle school, and started shooting kids. Nobody died, thank goodness, but this guy represented about as high of a risk to both public safety and for failure to appear for court that you can possibly represent.

The problem was that Bruco Eastwood didn't fall into the categories in our constitution that would allow judges to hold him without bail. In particular, he didn't have the requisite preconditions. So, instead of using the lawfully enacted constitutional process to detain him, we had to go through the semi-charade of setting bail with unattainable conditions of release that were actually designed to keep him in jail. In the end, he got a one-million dollar cash-only financial condition, along with a bunch of non-financial conditions just in case, God forbid, he actually got out.

This sort of thing -- setting bail with big amounts of money to detain people -- is happening all over the country, and it's basically the same thing that happened in the 60s, 70s, and 80s, before we even knew what preventive detention really was. Back then, we had a whole period of bail reform that led most states to change their constitutions or statutes to allow judges to detain people without the charade. And when we made those changes three and four decades ago, we quite reasonably created the detention availability "nets" based on certain super serious crimes -- indeed, using top charge was the only real way we had to give everyone a quick assessment of risk, and besides, the U.S. Supreme Court had approved of a detention scheme that used a charge-based net. So what you have today is a bunch of states that allow detention for high risk, but that risk is typically articulated primarily in terms of what the defendant is charged with.

Starting in about 2003, though, various American jurisdictions started getting really good at assessing a defendant's pretrial risk by using empirical or research-based risk assessment instruments, which use mathematics and statistics to give us a pretty good idea of which defendants will come back to court and which will stay out of trouble pretrial. And what we're finding out is that often these instruments show that some people with serious charges can be pretty low risk while some people with not so serious charges can be pretty high risk. In fact, now it's getting pretty common to see people wander into our justice system who are extremely high risk but who are technically "bailable" under any particular state scheme. When that happens, judges are setting those super high bonds, but it's just a matter of time before an appellate court says that the practice is unlawful. Think about it -- if you already have a lawfully enacted process for detaining defendants without bail, is it okay for a judge to say, "Well, I'm not going to use that process; instead, I'll just do it my way by using money?" It's as if a judge had said, "Yeah, I know you have a right to a jury trial, but I think I'll just skip that."

By the way, low and medium risk people are affected by all of this too. If you leave money in the system, as we did in Colorado, and give judges no choice but to use it for high risk folks, pretty soon they're using money on everyone, and the low to medium risk people can't get out of jail either. Overall, it's a pretty screwed up system, but it's what we have in America -- low to medium risk people can't get out of jail due to money, and high risk people can buy their way out of jail using money.

Oh, and lest you say, "Well, the high risk people can't get out if you set a million dollar bond on them," then just read the headlines. I've seen people post $10 million bonds. And when it comes to cash-only bonds, I once saw the Saudi Arabian government post a $2 million cash bond. And don't forget, the whole idea of "setting bail to detain" is likely illegal. There was a time in the history of bail in America when we all agreed on this. As we learn more, I think we're going to start seeing appellate courts agree, too.

The bottom line is that we only went halfway with pretrial justice in Colorado. We did some things with "bail," but we didn't get rid of money (mostly due to the inevitable compromises based on politics). And we didn't do anything with "no bail." I remember trying to get people to keep going, but for a bunch of reasons -- including the fact that it's hard to change a constitution, and at least one obstinate member of the Bail Subcommittee did his best to make everyone miserable even when we all agreed -- we stopped.

We know what we still have to do. New Jersey figured it out, too, and it's changing its constitution and statute to infuse pretrial risk into its release and detention scheme. Same with Delaware. Practically every state needs to do the same thing, and Colorado probably needs to do it more than most. The future of pretrial justice in Colorado means getting everyone together to craft the proper "bail/no bail" dichotomy in our constitution using pretrial risk instead of charges and preconditions. If we create a dichotomy that everyone can live with, and then we set up a lawful way to detain the 10 to 15 percent of defendants who are extremely high risk, we can add language to make sure that money doesn't continue to interfere in the release and detention process. In the end, some relative small percentage of defendants will be detained through a procedural-due-process-laden hearing, and the rest will be released immediately on varying levels of supervision, which could be as minimal as a phone call reminder like you'd get with a ticket, but which could include all sorts of non-financial conditions to protect people and make sure the defendant comes back to court.  

It's actually kind of simple.

Changing "Bail" and "No Bail" in the State Constitutions

Here's my dilemma. I'm quite proud of Delaware's foresight concerning bail reform. Delaware, apparently through the hard and admirable work of Beau Biden and others, has seen that pretrial justice in that state begins with a constitutional amendment designed to set up the "no bail" side of a proper "bail/no bail" dichotomy. My dilemma comes from the fact that I have to look at reform in the long term. Accordingly, I feel the need to comment on the current version of that amendment so that other states might be able to do the same thing, only better. I do this knowing full well that enemies of bail reform will use virtually everything -- including some unknown blog -- to thwart progress.

Still, there's good reason for taking a harder look at proposed constitutional amendments. Not too long ago, Washington State had a really terrible thing happen, which caused everyone in that state to realize that their constitutional right to bail provision needed amendment. You see, their constitution only allowed the government to detain people pretrial (i.e., "no bail") when they were facing murder charges. And so when Maurice Clemmons, a very dangerous and high risk defendant, shot and killed four police officers in 2009 while released on bail for a crime other than murder, the people of Washington quickly understood that their constitution would not have allowed anyone to lawfully detain him. So Washington changed its constitution. Unfortunately, to make sure that a "Maurice Clemmons type of case" couldn't happen again, Washington only changed the constitution so that, in addition to murder, judges could also detain people facing life in prison.

It was a good opportunity wasted. Washington could have changed its existing constitutional bail provision to allow for detention based on high pretrial risk, but instead it only added another category of charges. In Washington today, high-risk pretrial defendants not facing murder or life in prison may not legally be detained, which leaves only two options for judges: follow the law and set bail so that release is actually effectuated (and thereby threatening public safety), or use money and hope that the high risk defendant can't get out of jail. Thus, Washington is not much better now than it was before the constitutional amendment.  

I think we all learned from that experience. We learned that if we're going to go to the trouble of changing our constitutions, we ought to take the time to do it right. So let's take a look at Delaware's proposed constitutional amendment, albeit with the following caveat: I'm in no way saying that the proposed Delaware amendment is fatally flawed. Unlike the Washington amendment, it avoids fundamental errors, and it's also likely that the implementing statute can tidy things up even more. It takes a while to get the constitution changed in Delaware, and so I say, "keep moving forward!" This blog today is written to help all those other states in America, which, like Delaware, recognize that some constitutional amendment may be necessary for pretrial justice.

Let's start with what Delaware has already. Delaware is one of  about 21 states with "broad" right to bail provisions modeled after Pennsylvania's 1682 bail law, which made the right to bail available to all "unless for capital Offenses, where proof is evident or the presumption great." In addition to these 21 states, there are about 20 more that started with broad right to bail provisions, but have, as Delaware seeks to do, amended their constitutions over time to allow for preventive detention, which is the ability to lawfully detain a defendant pretrial without going through the charade of setting conditions of release that the court hopes the defendant can't meet. The other nine states operate like the federal system -- they have no right to bail clause, and so they can relatively easily enact statutory detention provisions. The 20 states that have already amended their constitutions mostly did so back in the 1980s and 1990s, and those constitutions look a lot like the constitution in Washington; they're primarily charged based, although some have preconditions, and some even have some elements of pretrial risk built into them. The point, though, is that Delaware allows bail for all except some extremely small class of people.

That might seem sufficient, except for two things. First, the history of bail and the law intertwined throughout that history allow both "bail" (release) and "no bail" (detention), so long as we set them up and do them correctly. Put another way, states are allowed to set up their own "bail/no bail" dichotomies, and so long as they follow certain fundamental legal principles, such as making sure that the right to bail or release is the norm, it's okay to detain pretrial a certain small group of people. This generation of bail reform is focused on risk, and so the most rational (and thus likely lawful) way to separate those whom we detain from those whom we release would be based on their risk of pretrial failure, with the extremely high risk defendants being detained and the low to medium risk (and even some high risk folks) being released. The fact that we know we're able to create our own lawful "bail/no bail" dichotomies without violating the federal constitution means that we have few excuses for tolerating a system that grants people a right to bail but then effectively denies that right for a group of defendants who could rightfully labeled as "no bail" in the first place.

Second, it's likely that Delaware is basically detaining defendants already, only by using money instead of a lawfully enacted procedure that might, for example, give defendants certain procedural due process rights prior to depriving them of their liberty. This was happening in the middle of the 20th Century, and it's when all those states I mentioned earlier started enacting preventive detention constitutional amendments and statutes. The bottom line is that Delaware has a "broad" right to bail provision, but that right is probably meaningless. Defendants are likely being detained both intentionally and unintentionally using money, and so changing the whole system -- starting with the constitution -- so that the system is more rational and transparent is a good start. Oh, and I should add one more thing. If a state basically tolerates judges using money to detain high risk folks, it's practically a certainty that money will filter into everyone's case, and you will also end up detaining boatloads of low to medium risk people who just can't pay the money.  

Delaware wants to enact a constitutional provision that allows detention for more than just capital offenses. Specifically, it seeks to allow for the pretrial detention of defendants facing "other such felony offenses and under such other circumstances as may be prescribed by law when no condition or combination of conditions other than detention will reasonably assure the safety of any person or the community." I suppose you could read this two ways. The first would be that Delaware is only allowing detention for an additional class of defendants charged with other felonies, and the "other circumstances" contemplated for the legislature would only address this increased class. I hope not, for that was the main problem with the constitutional amendment in Washington. The other way to read it is that felony offenses will definitely be a part of the detention eligibility net, but that the "and under such other circumstances" language gives the legislature sufficient room to design a proper "no bail" or detention scheme that is not necessarily tied only to felonies. Either way, it leaves the heavy lifting to the legislature, which can be good or bad.

The good part is that, given the leeway, the legislature can design a really good detention statute -- one that perhaps has a somewhat broad detention eligibility net based on a combination of charge and risk, but that systematically narrows that net so that those detained are very few. In this sense, the language in the constitution making sure that a precondition to detention is that "no condition or combination of conditions" will suffice to assure public safety or court appearance is a phenomenal addition. So very often in America today, judges detain defendants using money when it's clear that other conditions, virtually all non-financial, would easily provide reasonable assurance of public safety and court appearance for the vast majority of criminal defendants.

The bad part is that legislatures, historically, tend to add to statutes rather than to take away from them. Delaware must remain constantly vigilant that the legislature doesn't continually add to the types of charges and "other circumstances" that can lead to detention. This has already happened in the "charge-based" world of bail detention, with legislatures repeatedly adding to lists of, for example, "dangerous" or "violent" felonies, or by increasing crime severity to make them eligible for those designations.

This is a blog, and so I won't repeat at length what I have already written in the past (also, I should have a couple of new papers coming out soon that really provide a lot of detail in designing proper 'bail" and "no bail" dichotomies). But if you're going through the considerable bother of changing your whole constitutional bail provision, why not go all the way? This is how I would have done it.

First, I would have gotten rid of the words "bail" and "sufficient sureties" as archaic, unnecessary complex, and confusing. I love the term bail, and I've read and written more about the history of bail than most people I know. But I know when to quit. Quite simply, bail means release, but we've gotten so far from that meaning that we've grown accustomed to paradoxes (for example, to be "held on bail"), bad court opinions, release orders that don't actually lead to release, and judicial "decisions" that are based on chance. If possible (you never know exactly how wedded people are to these things) I would also have gotten rid of any of the archaic "proof evident, presumption great" language. There's really no reason to treat capital offenses differently from anything else, and a newly created constitutional release and detention provision would theoretically cover all charges and risk levels. Pennsylvania only put that in there to help more capital defendants get out of jail. I doubt that whatever weird case law that has grown up around the phrase makes as much sense today as it did in, say, nineteen thirty-something.

I would have started my constitutional provision with a paragraph outlining the right to release (the United States Supreme Court has equated the right to bail with the right to release, and the history of bail supports bail defined as release). I would have articulated a purpose that encapsulated the lawful purposes underlying the bail or release process, and, if necessary, I would have quoted from the United States Supreme Court's opinion in Salerno that we endeavor to insure that pretrial liberty remain the norm.

In my second paragraph, I would have outlined "no bail," which I would have correctly called detention. This paragraph would have allowed detention based on extremely high pretrial risk for public safety or failure to appear for court, but it would also have included provisions so that it remained "carefully limited" (another Supreme Court warning) no matter what the legislature did with it. For example, I would have used some sort of adjective for risk (such as "extremely high") and I would have tied pretrial risk to that measured by an objective, research-based risk instrument designed to predict pretrial failure. Essentially, I would have talked only about pretrial risk, not charge. Thus, if the supporting statute incorporated charges into a hybrid release and detention system, then the constitution would be final arbiter of the riskiness of any particular individual. I would then have actually defined risk (at least the outer borders) in the constitution so that the legislature wouldn't re-define it year after year based on its shifting notions of public safety, etc. Defining risk in the constitution is the hardest part, by the way, but not because we don't know how to do it. It's a political will thing.

I would then have outlined the extremely important provisions that would serve as the minimum requirements for a detention hearing, likely modeled after the federal statute. I might even have put in a different burden of proof. Overall, I've seen too many states create preventive detention provisions in their constitutions and then neglect the due process. To assure that the right to release remained meaningful, and that future practices couldn't serve as some perverted replacement for a rational and transparent detention process, I would have added a final, and crucial line stating that, as a constitutional requirement, a defendant could not be detained just because of money. Making sure that money doesn't detain is the key to doing both bail and no bail correctly. History has shown that you can enact the best procedural-due-process-laden hearings for detention, but judges won't use them if money will do the same thing quicker. Making sure that money can't detain will force judges to detain on purpose, and only after a proper hearing. They should be doing this now, but they aren't, so we really need that particular line.

In the final paragraph, I would have articulated what the legislature would need to do to enact the proper release and detention scheme. I might have added certain language that I wanted to make sure had some constitutional basis, such as the "no condition or combination of conditions" language from Delaware's proposed law, or language requiring the use of "least restrictive conditions," which is often articulated (and often ignored) as a part of the states' bail law anyway.    

The great thing about this is that you can see a bit of a template here: release, detention, legislative authorization. Theoretically, you could create the nation's shortest constitutional bail clause in just three lines, or expand it into three paragraphs, or even three pages depending on the state's values.    

Anyway, that's how I would have done it.