Bail and One's Right to It

A Transcendent Pretrial Decision

It’s an issue that simply does not come up that often: “When a state constitution says that there is no right to bail if someone commits murder or treason “when proof is evident, or the presumption strong,” who must carry that burden – the defendant or the prosecution? Indeed, in a well-regarded treatise on criminal procedure, the issue warrants only two lines of text and nary a footnote. Nevertheless, in an opinion dated June 25, 2013 (Fry v. Indiana, No. 09S00-1205-CR-361), the Indiana Supreme Court not only decided the case correctly, it did so with an opinion that transcends the legal issue, providing a glimpse into the sort of knowledgeable court decisions we might soon expect in this latest generation of American bail reform.

The holding is simple: for one hundred fifty years in Indiana, defendants facing either murder or treason charges have been required to first show that proof is not evident, or the presumption is not strong to be entitled to bail. Now, wrote the Court, “we hold that  . . . the burden lies with the State to show that ‘proof is evident, or the presumption strong.’” The Court’s rationale is strong and sound, and based on a number of well-reasoned factors, such as an inherent unfairness attaching to a somewhat inscrutable requirement that the accused, “saying there is and should be no evidence, should go into the wide world in search of that which he says does not and should not exist.” Indeed, the Court wrote, given that a primary benefit of bail is that it permits the unhampered preparation of a defense, requiring an incarcerated defendant to “disprove the State’s case pre-trial in order to earn the right to be unhampered by incarceration as he prepares to disprove the State’s case at trial” is a “backwards process” with “no valid justification.”

But despite the narrow issue, the opinion is exceptional for three reasons. First, it includes frequent and forceful references to the presumption of innocence (e.g., “we find the contrary procedure used in the past to be incompatible with the fundamental guarantee presuming an accused’s innocence until proven guilty beyond a reasonable doubt;” it “flies in the face of the principle that the presumption of innocence abides in the accused for all purposes while awaiting trial.”) Such statements are appropriate retorts to those who have recently attempted to downplay the presumption of innocence at bail, often for political reasons or monetary gain.

Second, when faced with the prosecution’s argument that the burden should not be changed because “defendants have carried this burden in Indiana since 1866,” the Court bluntly wrote: “For one thing, ‘because that’s the way we’ve always done it’ is a poor excuse – the merits of stare decisis notwithstanding – for continuing to do something wrong.” Across America, criminal justice decision-makers are being faced with strong arguments to improve bail practices. In some cases, those practices have spanned 100 or more years and have loyal adherents who oppose improvements simply because “that’s the way we’ve always done it.” Those decision-makers should be heartened by a state supreme court willing to confront the argument using little more than common sense.

Third and finally, in deciding the more detailed parameters of the burden of proof, the Court intentionally noted (state supreme courts do nothing casually) a recent policy paper from the Conference of State Court Administrators, which advocates revisions to bail laws that support risk-based over money-based practices, promote nonfinancial release options, and reduce reliance on bail schedules in favor of more evidence-based risk assessment. The Indiana Supreme Court wrote: “To attain greater success at incentivizing appearance at trial, enhancing public safety, reducing costs of pre-trial custodial detention, and achieving greater economic equity and fairness in the availability of release from pretrial detention, there is growing interest and exploration of pre-trial release programs based on evidence-based practices as an alternative to monetary-based bail. Our opinion today should not be read to limit the availability of such practices in Indiana.”

There are numerous bail practices that are simply wrong and backward and that require remedy. As the Indiana Supreme Court noted, sometimes these practices are 150 years old, and locked into place not only by custom and habit, but also by such bedrock legal principles as stare decisis. The Indiana Supreme Court’s opinion, however, provides encouragement that remedies are nonetheless possible. The opinion should be a wakeup call to those who believe the courts will not engage in the struggle for pretrial justice. And to those currently in that struggle, the opinion should bolster their resolve by providing a courageous and knowledgeable example of incremental pretrial reform.       

Restorative Pretrial Justice

In a recent Aspen Daily News Story, Man’s Felony Dismissed After Participation in Innovative Judicial Approach, found at http://www.aspendailynews.com/section/home/158703, the paper tells of a man charged with extortion of a Latino couple after a car accident. The “innovative approach” is called restorative justice (or sometimes reparative justice) and has actually been around since the mid to late 1970’s. It’s based on a novel concept of addressing the needs of the victim, the community at large, and the defendant to address wrongs as an alternative to the traditional legal system that focuses on offender punishment and abstract legal responsibility, with victim and community considerations often receiving nothing more than lip service. Restorative justice looks at who has been harmed in a given situation, and sets out to restore those persons to a place before the harm took place.

What makes it “innovative,” I suppose, is the fact that prosecutors rarely get elected employing the practice; a lot of them still believe (incorrectly) that the public is fixated on punishing wrongdoers at the expense of nearly everything else, and so restorative justice is rather slow to catch on. Nevertheless, this story provides hope that certain enlightened prosecutors (or at least one of them) are willing to give it a try.

Moreover, there is beginning to emerge some pretty decent research showing that restorative justice has positive effects. In one meta-analysis of restorative justice research (the highest quality of “evidence” in an evidence-based decision making model), Latimer, Dowden, and Muise (2005) reported the following:

“Despite some methodological limitations, the results provided notable support for the effectiveness of these programs in increasing offender/victim satisfaction and restitution compliance, and decreasing offender recidivism.”

Of course, one of the main “limitations” is what’s called “self-selection bias,” due to the fact that the restorative justice process is, by its nature, a voluntary one. Random assignment of offenders to control and treatment groups will almost always undermine the foundations of the process.

Nevertheless, the restorative justice hypothesis has enormous potential based simply on logic and fairness, which is why I applaud the prosecutors in Aspen, D.A. Sherry Caloia and Deputy D.A. Andrea Bryan, for deciding to try it out. For too long we have thought that our adversarial court process has been the best process for righting wrongs. We are taught the adversarial process in our law schools and we praise it in our college civics classes. But for those of us who have been in its trenches, we have seen that the process needs a bit of work. Restorative justice, at least, gives us an alternative.     

Colorado's New Bail Law

In case anyone is wondering, here's a fairly detailed paper explaining Colorado’s new bail law. It’s not necessarily the best law, or a model law, but it’s a heck of a lot better than the one we had before!

http://www.clebp.org/images/2013-07-03_New_Colorado_Bail_Law.pdf. 

Happy reading! 

Bail Bond Trends

The corporate bail insurance lobbyists recently testified to Colorado’s Senate Judiciary Committee that a there was a national trend toward using for-profit bondsmen and cited to Wisconsin as proof. The problem is that Wisconsin has once again decided that bondsmen should play no part in its justice system.

Instead, the trend that I see (and that others should note) is that the corporate bail insurance company lobbyists will do virtually anything in their power to increase profits, including slipping an enabling provision into a state budget bill in the middle of the night, and then hoping it will go through so that they can mislead other states about their industry.

Nobody in Wisconsin, save a couple of good friends of ALEC and a few oily characters who like to use ALEC as their personal platform, wanted bondsmen back in. And fortunately for Wisconsin, the Governor listened.

Good for you, Wisconsin!  See you soon! 

Criminal Justice, Redemption, and Empathy

Here’s a story about criminal justice, redemption, and empathy. The title is, “In America, Criminal Justice System Needs Redemption More Than the Prisoners.”

http://www.alternet.org/belief/america-criminal-justice-system-needs-redemption-more-prisoners

It tells the story of a prosecutor who slowly began seeing how his Christian worldview conflicted with how he was treating the least among us by traveling down the traditional criminal justice path of mass incarceration in the name of justice. Really, it’s a story about empathy, because anyone who can truly empathize with a criminal defendant cannot help but see the person who is capable of a better life, and who should be forgiven and extended a community’s helping hand at living in society. This prosecutor came to a sort of epiphany when he actually entered into a prison and started teaching college classes to inmates. According to the prosecutor, Preston Shipp, interacting with these inmates caused him some degree of cognitive dissonance:

When the only information you receive about a person is the worst thing they’ve ever done, it’s very easy to regard them as less human. How can I reconcile the job I was asked to do as a prosecutor with my faith in Jesus, who came proclaiming release for prisoners?

How indeed? In this case, he couldn’t, and so he quit his job as prosecutor and now advocates for criminal justice reform. The article talks about a documentary you can watch describing his redemptive transformation.

So what does this have to do with bail? Well, apart from the idea that judges and lawyers would benefit from the occasional trip inside the jail or prison they send people to, I have seen a great lack of empathy in the criminal justice system for pretrial defendants. This lack of empathy is likely expected. At a typical bail hearing, there is often only a charge and the police affidavit along with a criminal history to guide everyone. These documents tend overwhelmingly to cast the defendants as bad people who did bad things. Still, these people are human, just like you and me, and if we saw even a little bit of ourselves in them, we might not be so quick to lock them up or otherwise make their lives miserable before their trials.  

Don’t get me wrong. I care immensely about victims of crime. On more than one occasion I’ve been the victim of a crime, and I have close relatives who have been victims of violent crimes. But I think that empathy allows us to care about both victims and the people who stand accused.   

I’ll quit preaching now, but I have to say that I don’t think I would even need to be working at bail reform if everyone showed just a little more empathy. 

Confused About What Bounty Hunters Actually Do?

Here's a story written by a “fugitive recovery agent.” http://www.aboutbail.com/articles/1453/bail-bonds-enforcement-agents-media-portrayal-and-the-perfect-world

We used to call them bounty hunters, but I think I like the term “agent” better because it sounds fancy and makes you feel like you're gambling in Morocco. He says he’s setting the record straight about what these agents actually do because people are confused.

Frankly, I don’t think I’m all that confused. This next story, http://www.newschannel9.com/news/top-stories/stories/bondsmen-arrested-shooting-trenton-man-5494.shtml, is pretty clear about what these two “fugitive recovery agents” in Florida actually did: they chased a guy, got into a scuffle with a dog, shot the guy, and got arrested for aggravated assault (the defendant was only facing charges for disorderly conduct, by the way).

The more stories I read about people trying to correct misconceptions about what they do, the more I think that they aren’t really misconceptions, you know?

    

Bail, Insurance Companies, Politicians, and Greed

In the story, "Bail Bond Bill Will Create Debtor’s Prisons,” by Bruce Murphy, he asks, “Why are Republicans pushing a bill opposed almost unanimously by criminal justice professionals?”

http://urbanmilwaukee.com/2013/05/21/murphys-law-bail-bond-bill-will-create-debtors-prisons/

Why, indeed? But Wisconsin is not alone. Across America, big insurance company lobbyists are pushing bills designed to increase their profit – criminal justice be damned – by backing bills to insert for-profit bail into the system, or to limit judges in using methods of release that don’t involve sending business the insurance companies' way. In a quote from District Attorney John Chisholm in the article, “The return of commercial bail bonds, will primarily benefit out-of-state interests, the large bail-bond corporations” motivated “purely by financial interests” at the expense of public safety. 

Oh good. Let’s pass it.

But it’s worse than that. I believe that the bail insurance companies want back into Wisconsin just so they can say that it represents a “national trend” toward using for-profit bail. In fact, I was recently at a Senate hearing in another state where the bail lobbyists said that very thing. Never mind that virtually no one in criminal justice, from police to judges, feels that for-profit bail has any meaningful value. Never mind that the bail industry tried to get into Wisconsin before, and failed. Wisconsin is just being used to further the interests of the big bail insurance companies. They have the money, and thus they have access to politicians who, strangely, will pass criminal justice laws that the whole criminal justice system opposes.  

There was a guy at the Senate hearing who said that he teaches on “best practices” at bail. Unfortunately, he is paid quite well to say that for-profit bail is a best practice. He is wrong, of course, and hopefully Wisconsin will rally together to keep this corporate interest out of criminal justice. Believe me, once they are in Wisconsin, the state will see a barrage of new laws each year designed to continue increasing the bail industry profits. It will see a new regulatory bureaucracy necessary to watch over the “problem child” of regulated occupations. Finally, and most unfortunately, it will see unnecessary pretrial detention of those who simply cannot afford to pay the bondsmen’s fee.

Scholars have openly condemned the for-profit bail industry practically since its inception. Wisconsin should be proud to know that it was famously enlightened when it abolished the practice in the 70’s.

Read the story. It shows how ALEC, the various bail insurance companies, and a few lobbyists are using Wisconsin as a pawn in their American bail strategy – just so they can make a buck.