Ferguson

Talking about Ferguson today isn't that big of a stretch for a guy specializing in bail reform. After all, a broad definition of bail as well as the concept of pretrial justice includes an officer's decision to release or detain, and, without even talking about the contact that initiated this whole thing, a whole bunch of people probably got detained in the last couple of days and nights after finding out that the Grand Jury wouldn't indict.

But I write today as someone who used to work in all areas of the criminal justice system, and who used to try to find answers to questions arising from all decision points. That and other experience in the system causes me to write very briefly about what must now be done: a complete examination of our criminal justice system and the methods we have created, nurtured, and perhaps taken for granted over the last century, and with that examination done by a body of people who didn't create this mess to begin with.

In a recent Time Magazine, Joe Klein explains how a certain type of police training -- one that was opposed by many people embedded in the current system -- could have entirely prevented the original shooting in Ferguson. My own experience with police training has illustrated to me that some communities will never experience the tensions underlying relationships in Ferguson because of the more progressive ways they hire and train officers, but try telling that to certain police agencies who have been training the same way (or in increasingly aggressive ways) for decades. I have seen first-hand abuses with the grand jury system, but getting a sitting prosecutor to recognize that abuse -- or even the clear appearance of abuse -- is nearly impossible.

And then there's bail. I've spent eight years now talking about how unfair it is to lock people up before their trials based on how much money they have, but criminal justice officials seem content with the whole thing. I once knew an elected prosecutor who repeatedly talked about how many years of experience he had in the justice system, but when it came to improving that system he was adamantly opposed. When the jail was full, he said that a full jail wasn't his problem. When we talked about pretrial justice, he said he didn't think anything was wrong. When we mentioned research, he actually said that he didn't believe in research. His experience, it turned out, was basically in screwing things up. For decades. And guess what? When the time came to create a group of experts to look at bail reform in Colorado, they put him on (well, he kind of forced his way on, but that's another story).

We need complete reform, and we can only accomplish that reform by intentionally leaving out many of the people responsible for the current broken system. It shouldn't be too hard to realize that a "blue ribbon commission," which is designed to stop current abuses, but which is comprised of those persons who tolerated those abuses for decades, is not the answer.

The other day I had an older gentleman who had been involved in criminal justice for decades try to argue with me about what he saw were the benefits of secured money bail -- the one thing that we know keeps people in jail unnecessarily due to their inability to produce it. The same day I heard from a twenty-something legislative aide who had decided simply to take secured money bail completely out of the state statute. The difference? If the first guy didn't actually cause some of the problems that we have today, he certainly tolerated them, or maybe even worse, didn't recognize them at all. The young aide had a clean slate.

Ferguson started with a human tragedy -- the death of Michael Brown -- and I am praying for Michael, his family, the community, the police, and everyone else who want sincerely to avoid human misery and suffering at every cost. The uprising in that city and in cities across the United States in the last couple of nights is a clear signal that the people of America are upset with the way our criminal justice system is playing out, and the need for some sort of reform, So, sure, look into reform and create a group to do it. Look into police training and tactics. Look into pretrial justice. Look into the grand jury system and other prosecutor practices. But leave out the people who aren't even sure why the citizens of Ferguson are upset. Leave out the people who think that the country is overreacting. Basically, leave out the people who caused all of our problems to begin with. They had their chance.  

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!

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.

Bail Fact # 733

In 1898, the first commercial bail bonding company opened for business. By 1920, America had begun to realize that it had made a mistake by allowing that to happen. In 1922, Roscoe Pound (Dean of the Harvard Law School) and Felix Frankfurter (future Associate Justice of the United States Supreme Court) offered the following simple solution to the dilemma. They wrote, "if we eliminate the opportunity [for the for-profit bail bonding] business, those who are now engaged in it will seek a living elsewhere."

At least it sounds simple. I wonder, did they have any bail insurance company lobbyists back then?

 

The History of Bail in Ohio and Washington

This is the part of the Third Generation of Bail Reform in which we start seeing changes to policies, practices, and laws. So it's no surprise to see a couple of state supreme court cases dealing with bail. In both Ohio and Washington, the highest courts had to interpret those parts of their constitutions articulating a right to bail through "sufficient sureties." I won't go into detail about the cases, but I will mention two or three things of which I have written before.

First, the history of bail is not purely academic. Courts today still use bail's history to figure things out, like what "sufficient sureties" means in a state constitution. They may not always get it right -- for example, if the Ohio Court really knew bail's history, it would agree with the dissent's statement of bail's purpose -- to release people -- and it would more properly define "bail" as a process of release; if the Washington Court really knew bail's history, it would fully understand the historical concept of assessing sufficiency and would not be so quick to separate the concept of personal recognizance from bail.

Second, one of the major themes running through the history of bail is that whenever anything interferes with a bailable defendant's ability to be released, some correction becomes necessary. The notion that bailable defendants should actually be released is how we got Habeas Corpus, how we got the Excessive Bail Clause, and accounts for the entire first generation of American bail reform in the Twentieth Century. In Ohio, the trial court was basically requiring defendants to pay some percentage of the financial condition in cash, and wouldn't allow them to use bondsmen. In Washington, same thing. The problem was that these restrictions were causing the detention of bailable defendants, and therefore history demands a correction. It always has, and I assume that it always will. Thus, these cases were wholly predictable; indeed, across the country, I warn jurisdictions that if they continue to detain bailable defendants, there will inevitably be some correction or reform. In the 1800s, we started running out of personal sureties (people who were willing to take responsibility for defendants for no profit) and the result was the detention of bailable defendants. Our response, though poor in hindsight, was to allow people to profit from bail. We moved from a personal surety system to a commercial surety system primarily to make sure that bailable defendants got out of jail. What we didn't realize then was that the commercial surety system would cause nearly as much detention as not having sureties at all. It all follows the same pattern.

Third, we are seeing a trend. Judges across America are starting to realize that money poses some pretty serious problems with how we administer bail. On the one hand, money often keeps bailable defendants in jail, which, as I said before, requires historical correction. On the other hand, money doesn't help at all with unbailable defendants (or those whom we feel should be unbailable based on risk) unless it is set with a purpose to detain. If you're worried about public safety, you certainly wouldn't set a commercial surety bond -- bondsmen sometimes let defendants out with no money down and on payment plans, and even then the money isn't even forfeited for a new crime. No, risk to public safety is mitigated by non-financial conditions and, in some very rare cases, detention ("no bail"). Unless we dramatically reduce our reliance on money in the administration of bail, we will continue to see judges struggle with it and thus see issues surrounding money that can only be addressed in the appellate courts.

All of this points to the need to change not only our bail statutes, but also our relevant constitutional bail provisions to create proper "bail/no bail" dichotomies based on defendant risk. As I said the last time I wrote in this blog, a model constitutional provision would likely eliminate such terms as "sufficient sureties," because they are archaic, confusing, and get in the way of what we really need to do, which is to create the proper ratio of released to detained defendants. Sureties and their sufficiency were important concepts to English and American bail based on the personal surety system, but those concepts are simplistic and quite antiquated today.    

The bail insurance folks look at these two cases as wins for commercial bail, but they aren't. Indeed, in its opinion, the Ohio court goes out of its way to say that sureties can mean any person willing to take responsibility for a defendant (a historical concept) and not just someone who does it for profit. Moreover, to say, as the commercial folks do, that the opinions are supported by decades of research proving the effectiveness of for-profit bail bonding is simply false. If anything, the research shows commercial bail to be a failed experiment with effectuating release. We started using commercial sureties in about 1900, and by 1920 we had our first study saying that we'd made a mistake. Instead, I would look at these cases as wins for bailable defendants, who should be released but, for whatever reason, are not.

These two opinions address the situation when a judge keeps a bailable defendant in jail by making him or her pay cash and won't give him access to other means that might effectuate release. But the opinions don't talk about the other things that we need to fix. Like, for example, what happens when a bailable defendant can't pay the cash and the bondsmen won't help him out? Tough luck? I doubt it. We have a line of cases saying that bail is not excessive simply because someone can't pay it, but I predict that these cases will soon be overturned or otherwise negated. They contradict history, and their underlying rationale is worthless given our current understanding of risk and risk mitigation. Ultimately, it'll be the bondsmen and insurance company's core tendency to pick and choose defendants based on their wealth that will cause courts to reject the for-profit industry. Historically speaking, it's inevitable. In addition, these opinions have little to do with the implementation of "no bail," which is an equally important concept of pretrial justice, and which will undoubtedly be the subject of future appeals. In short, we're moving away from using money at bail, and the fact that a couple of state supreme courts are still talking about money won't change that fact.

The Ohio and Washington cases are interesting, but probably only the last gasps of courts trying to accommodate money in a system of bail that has simply outgrown it.

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.