Does the Current Bail System Penalize the Poor?

The Obama Administration has again challenged the bail system, asserting in an amicus brief in a Georgia case that fixed bail schedules, which don’t account for the ability to pay, are unconstitutional.

This position was most recently asserted in an amicus brief filing in a case in Georgia.  A  previous blog from the Association of Los Angeles District Attorneys observed that a lawsuit in California is also challenging the bail system, although that lawsuit was denied class action status and an injunction earlier this year by a federal judge who issued a scathing decision.

Setting bail for those facing criminal charges is undoubtedly constitutional, as the 8th Amendment only prohibits “excessive bail.”  In addition, the United States Supreme Court approved holding a person pre-trial without bail in a 1987 case, United States v Salerno.

The Obama Administration now seeks to challenge the bail requirement for indigent defendants as a violation of the 14th Amendment.  However, as law professor Stephanos Bibas commented to the Los Angeles Times, the Supreme Court has not previously ruled that the equal protection clause forbids policies which may discriminate against the poor.

In California, Penal Code Section 1269c requires judges in each county to meet yearly and set a uniform bail schedule for that county.  This schedule is used by police to set bail for persons booked into custody following arrest.  If the arrestee does not bail out, he or she must appear for arraignment before a judge within 48 hours.  Once the person appears in court, the judge can consider the crime charged, criminal history of the arrestee and any prior failures to appear in setting bail.

The determination of the judge is not final.  The arrestee may request an additional hearing at which the arrestee is permitted to provide additional facts to challenge the bail amount.

The need for bail as a means to ensure appearances in court is readily apparent.  Some could argue that the current bail system does not penalize the poor, it targets the rich.  Judges routinely change bail amounts to reflect the wealth of a defendant.  For example, a very wealthy person charged with a violent crime will see bail often increased to reflect the fact that the standard bail amount is a less meaningful incentive to appear in court than it would be to the average person charged with a crime.

If there is any doubt that not requiring bail leads to failures to appear in court, consider the impact of Proposition 47.  In California, those arrested for misdemeanor offenses are rarely held pre-trial, instead usually being cited and released to appear in court at a later date.

When Prop. 47 reduced a significant number of felony offenses to misdemeanors, one of the early impacts was that failures to appear in court soared in 40 of the 58 counties surveyed earlier this year.  In Monterey County, there was a 33% increase in failures to appear for misdemeanor offense following the passage of Prop 47.  As a newspaper editorial noted, these criminals are not only failing to make their court dates; they aren’t getting drug treatment either.

If the Obama Administration position calling for the abolition of fixed bail schedules were to be adopted, the consequences in California would be significant. No longer could arrestees on felony offenses be booked into jail without appearing before a judge or commissioner.

Instead, those arrestees would have to appear before a judge or commissioner prior to being booked in jail, with a Deputy District Attorney and defense attorney required to be present at that hearing. Since arrests occur day and night 365 days a year, that means courtrooms opens 24 hours a day, 365 days a year, to conduct bail hearings, staffed by a judicial officer, court staff, deputy sheriff’s,  a prosecutor and defense attorney.  Since arrest reports would not have been written, the arresting officer would have to be present to give a probable cause declaration.

The case study cited by DOJ as an example of abusive practices was based upon an the arrest of an individual for a misdemeanor offense in Calhoun, Georgia — a town so small that court was only in session once a week.  Never mind that Calhoun’s practice of holding individuals in custody for over 72 hours most likely violated other constitutional rights.  The focus was the $160 bond required for release before the arrestee’s first appearance in court.  By contrast, the California Penal Code requires that all arrested persons be brought before the court within 48 hours (weekends excepted).

The Obama Administration’s argument that all pre-appearance fixed bail schedules are unconstitutional on their face is unfounded, and if adopted would impose great financial costs upon California counties, not to mention the public safety implications.

As is typical with “reformers,” the Justice Department’s brief offers criticism, but little in the way of workable solutions.  For example, the current bail in Los Angeles for the crime of murder is $2 million. If an indigent homeless person commits murder, is the Department of Justice suggesting that the bail should be reduced to, say, $100 or some similarly insignificant amount?

The assertion that it is unfair to detain a person charged with a crime pre-trial based “solely” on his or her inability to pay bail begs the question: Who would be in custody if they could pay the bond?

Every single person charged with a crime in California who is in custody pending arraignment or trial (other than those charged with capital murder which carries no bail) is there because the bail was set at an amount they were unable to pay.

The use of fixed bail schedules in California post-arrest, and before arraignment, is both respectful of public safety and an arrestee’s constitutional right.  We await the decision of the 11th Circuit Court of Appeals and perhaps the United States Supreme Court for the final word.

Bail Reformers Aren’t Waiting for Bail Reform

They’re using charity to set poor defendants free.

 

The nationwide movement for bail reform is advancing, gradually, through legislatures and courts. Just last week the U.S. Department of Justice filed a friend-of-the-court brief with the 11th Circuit Court of Appeals, arguing for the first time at this level that putting defendants in jail because of their inability to pay bail is unconstitutional. The appeals court is considering the case of a man in Calhoun, Georgia who was kept in jail for six nights on a misdemeanor charge of being a pedestrian under the influence because he could not afford $160 bail.

Meanwhile, bail reform advocates increasingly are taking direct action: raising charitable funds they use to put up bail for defendants too poor to pay their way out of jail.

These funds have sprung up in recent years in cities across the country, including Boston, Brooklyn, Nashville, and Seattle. Similar funds are currently being explored in St. Louis, Miami, Cincinnati, Oakland, Philadelphia, and Austin. Because bail is typically returned as long as a defendant meets his court obligations, bail funds can be used repeatedly to bail out more people.

Most proponents of bail funds see their work as a form of political resistance, using charity to chip away at a system they believe should not depend on money. “Our overall goal is to end money bail,” said Sharlyn Grace, co-founder of the Chicago Community Bond Fund, which has paid roughly $160,000 for the release of over 30 people, including $35,000 for a woman charged with killing her allegedly abusive husband. “One thing we’re clear about is that we don’t want to exist,” she said.

That is not what motivates the most recent potential entry into the bail fund world. The American Bail Coalition, a trade group for insurance companies that underwrite bail, is considering setting up a charitable bail fund of its own. This represents a change of tune for an industry that has repeatedlydenied that bail often leaves poor people languishing in jail while the well-to-do go home. “It does happen, so I think we need to admit that,” said Jeff Clayton, policy director for the industry coalition, although he insists the inequities aren’t as widespread as bail reform advocates claim. “We can do some good if we put our mind to it.”

Critics of bail suspect the insurance companies’ fund, if it materializes, is part of a public relations campaign to soften the industry’s image and slow the pace of serious reforms.

“The insurance companies think if they do a bail fund, that will slow down the progress of eliminating money, because then they can say, ‘Look, we don’t need bail reform, we’re making progress through bail funds,’” said Tim Schnacke, a bail critic who has analyzed and written extensively about bail systems.

“A national bail fund sponsored by the bail bondsman?” said Cherise Fanno Burdeen, the executive director of the Pretrial Justice Institute. “That’s like a free sample of heroin from a drug dealer.”

Burdeen said bail funds — whether run by the industry or its critics — are unlikely to interfere with bail reform efforts, because lawmakers around the country are more concerned about the other end of the bail system: dangerous people with the means to buy their way out, who may commit new crimes.

“The public safety element of this is more important to stakeholders than poor people who can’t post bond,” said Burdeen.

Bail funds, proponents say, are serving as laboratories of sorts, testing the long-held belief that defendants are more likely to behave themselves and show up for court dates if they have money at stake. The Bronx Freedom Fund, which is an outgrowth of a public defender office, says it has bailed out more than 600 people charged with misdemeanors since 2007. Although they had none of their own money on the line, the vast majority, 96 percent, returned for their court dates, in some cases as many as 15 appearances. Fifty-five percent had their charges dismissed entirely; many of them probably would have pled guilty if the fund had not freed them.

“Anybody will plead guilty to go home, and everybody knows it,” said Robin Steinberg, co-founder of the Bronx fund. “This model allows us to prove that point while freeing people in the meantime.” Steinberg said she is working to establish a national bail fund, called the Bail Project, that would provide seed money and technical assistance in communities across the country. They hope to launch in the fall.

Bail funds have an array of origins and structures. The Massachusetts Bail Fund was started in 2013 by a group of defense attorneys and social workers. The fund uses a scoring tool to help assess each applicant’s potential to appear in court and caps charitable bail at $500 per defendant. The Connecticut Bail Fund, expected to launch this September, was organized by a group of Yale students who are now working on getting their state bondsman licenses (a requirement to post bail in some states). The Lorena Borjas Community Fund in Queens works to raise bail money for transgender women of color, mostly sex workers. And New York City Council Speaker Melissa Mark-Viverito is also working to establish a bail fund. Other funds were started by local activists protesting police violence, including bail funds in Baltimore, Oakland, Ferguson, Cleveland, and most recently, Baton Rouge, where nearly $300,000 was raised to help bail out protesters after Alton Sterling was shot by white police officers.

Laws in some states and cities make it far more difficult to sustain bail funds. When Just City, a nonprofit in Tennessee, tried to establish a bail fund in Nashville and Memphis, the group encountered an obstacle: in some parts of Tennessee, courts deduct fines and fees directly from a person’s bail deposit, regardless of who posted it; this threatened to slowly drain the fund. Nashville officials agreed to make an exception and return money to bail funds without deductions, but Memphis was less accommodating, and Just City has suspended its plan for a bail fund there.

The Massachusetts Bail Fund had early success, bailing out hundreds and documenting a 60 percent case dismissal rate for their clients. But the money ran out. “The need seems to be bottomless,” said Atara Rich-Shea, the fund’s operations director. She said getting the money back has been a challenge because the organization isn’t always notified when a case has concluded. They anticipate reopening in September.

This summer, the Chicago Community Bond Fund temporarily limited the number of new clients it accepts to focus on replenishing the fund. The fund is relying on success stories to help them raise that money. One recent client was Steven Cordon, 23, who was accused of having 1.6 grams of crack cocaine and was booked into Chicago’s Cook County Jail this April because he didn’t have $2,000 to bail himself out. He pleaded not guilty to drug possession and sat behind bars for a month awaiting trial before the Chicago fund was alerted to his case. The fund paid for his release on May 1, and four days later, a judge dismissed the charges, citing a lack of probable cause.

Cordon’s lawyer, Borjan Kovacevic, said the case could have gone much differently if Cordon hadn’t been bailed out. As a defense attorney, he has had numerous clients who pleaded guilty against his advice, he said, because they are desperate to be free. “I knew for a fact they were innocent, but they’re scared, they’re getting beat up, and all they can think about is getting out of there,” Kovacevic said.

Statement on the Amicus Brief Filed by the U.S. Justice Department

THE U.S. JUSTICE DEPARTMENT’S INVOLVEMENT IN LOCAL BAIL POLICY IS NOTHING NEW—THE DEPARTMENT HAS TO REFORM SOMETHING SINCE IT CHOOSES TO DO NOTHING TO REFORM THE BROKEN FEDERAL BAIL SYSTEM

            News media outlets around the Country are reporting on the recent filing of an amicus brief by U.S. Justice Department officials, in what one outlet called a “landmark” decision to file an amicus brief in a case challenging the use of monetary conditions of bail.  That suit is pending before the U.S. Court of Appeals for the 11th Circuit, entitled Walker v. Calhoun, GA.

Instead, this is far from a “landmark” decision.  In reality, this is an obvious and not particularly newsworthy decision by the U.S. Justice Department.  The Department, led by then-Attorney General Eric Holder started the very anti-money bail movement eighteen months ago, when the Justice Department intervened in the City of Clanton case in February, 2015.  That was a “rare move,” as the Wall Street Journal described it at the time.  This set off a wave of copy-cat cases, several of which are now pending around the Country, the Calhoun case being the first to test the “cannot afford” bail equal protection theory.  If the Justice Department’s theory was the law, then certainly they wouldn’t need to file an amicus brief on behalf of the “United States” to counter the arguments made in favor of the City by former U.S. Solicitor General Paul Clement.

Further, the Justice Department makes mention in the brief of the intervention it filed in the Clanton case, although the Department glosses over a critical point.  The Clanton case settlement is nearly identical to the municipal court’s order in Calhoun that is now in effect, which the Plaintiffs and the District Judge believe is unconstitutional.  The settlement order in Clanton sets bail in all offenses in a monetary amount, but all such conditions must be reviewed by a judge within 48 hours.  In fact, Paul Clement informed the U.S. Court of Appeals for the 11th Circuit that the right to bail could not attach before the right to arraignment, which is 48 hours after an arrest pursuant to the City of Riverside case.

Finally, anyone who wants to follow the lead of this U.S. Justice Department on criminal policy may want to first review the facts.  It is particularly ironic that this Justice Department would now cite U.S. v. Salerno for the proposition that “liberty is the norm” and detention the exception.  Certainly the ACLU warned that adopting the federal risk-based detention system would increase incarceration—that is why the ACLU opposed the federal bail reform legislation and similarly joined the suit to call the federal bail reform act unconstitutional.  True to form, this Justice Department now incarcerates, with no bail, 64 percent of all persons charged with a federal crime, which is up by 48 percent over the last 15 years.

Before the Justice Department officials continue their march into federal courts to force small cities like Calhoun, Georgia to run a bail policy endorsed by the Department, the same officials may want to realize they entirely lack credibility on this issue because in the very system over which they preside, detention is indeed the norm and liberty most certainly the exception.

Because everyone else is doing it. Or because everyone else is not doing it.

A look at one of the lame-brained arguments used by opponents of accountable, secured pretrial release.

And, besides, what’s wrong with something that’s uniquely American?

Anyone in the bail bond business knows that there is an increasingly vocal and strident minority who would like to eliminate our profession completely. It doesn’t matter to them how effective we are at guaranteeing the appearance of defendants released pretrial. It doesn’t matter to them that we go out and routinely apprehend dangerous criminals who fail to appear at no cost to the taxpayers. It doesn’t matter to them that we are accountable to the criminal justice system and to the courts. It most certainly doesn’t matter to them that we pay taxes, support families and serve our communities.

None of the relevant facts matter. They are committed to ending what they call “money bail.” (We call it constitutionally protected secured bail.) The more money that these outfits siphon from the public trough, the louder become their cries to eliminate the evils of “money” in the criminal justice system. The irony is not lost on me that these “free” publicly-funded pretrial release advocates solicit “money” donations on their websites and grant applications.

Outfits like PJI burn through copious amounts of hard earned taxpayer “money” to produce bogus “studies” which invariably conclude that accused defendants should be released on unsecured bail bonds. One of their recurring fallacious arguments concerns the role of private commercial bail agents in the United States.

Popular does not always equal right

They argue that the United States is the only country in the world that has commercial bondsmen. Sometimes their claim is modified to state that only the United States and Singapore have commercial bail. I don’t know if this true or not, but honestly, who cares? The flawed argument is that since other countries don’t have such a system, therefore “money” (ie: secured and accountable) bail here in the United States ought to be eliminated.

First of all, when I went to school this was called an argumentum ad populum. My Mom had a much simpler description, “If all of your idiot friends jumped off of a bridge would you, too? To be clear, what they are saying to policy makers and anyone else who will listen to their poppycock is that if most countries don’t have commercial bail, then commercial bail must not have value. To show you just how hypocritical and disingenuous they are, they will often follow this illogical argument – sometimes in the very following paragraph – with the claim that Washington DC and Kentucky have eliminated commercial bail and therefore the other states in the U.S. should as well. So they are left with this absurd position: Eliminate commercial bail because the overwhelming majority of the other countries don’t have it. Eliminate commercial bail even though the overwhelming majority of jurisdictions in the United States use it.

They are wrong on both counts. Of course it’s preposterous to suggest that commercial bail should be eliminated because other countries don’t have it. We have commercial bail because it is effective and serves a critical role in our criminal justice system – not because of its popularity in other countries. Besides the fact that such an argument is illogical, what is wrong with something being uniquely American?

I am proud of my profession as a bail agent. I am also proud to be a citizen of the United States. I could be wrong, but I think that – just like commercial bail – the following are some things that are uniquely American:

  • College Football
  • BBQ
  • Muscle cars
  • Thanksgiving
  • Boy Scouts
  • Apple Pie
  • Blue Jeans

The next time you hear one of these misguided zealots say that only the United States has commercial bail, let them know that it has taken the rest of the world a while to catch up with us on NFL football and Harley Davison motorcycles as well.

Bail Reform: The True Cost of FREE

BEHIND THE PAPER WITH BRIAN NAIRIN

The Pretrial Justice Institute Finally Admits that Public Sector FREE Pretrial Release and Supervision are Too Costly…Their Solution, FREE Release with No Supervision.

In my many years of defending the commercial bail industry from public sector advocates, I have seen it all. I have seen these advocates lie about their programs’ effectiveness, draw sketchy conclusions from statistically irrelevant research (that of course they conducted themselves) and perpetuate false narratives to misinform the public about the so called “evils” of the commercial bail industry, or as they refer to it, “money bail.” Even with all that, I would be lying if I said I wasn’t shocked and confused when I read the most recent article published by the Pretrial Justice Institute’s guest blogger, Charlotte McPherson. In this July 19th blog entitled “Pretrial Supervision, Like Detention, Should Be Carefully Limited.” Ms. McPherson made the following comment:

“Jailing people accused of crimes can be a costly endeavor, but so can releasing them and placing them on supervision. For example, drug testing and electronic monitoring are not cheap, nor is the pretrial officer’s time that is required to monitor compliance for these and other pieces of supervision. With tightening budgets for pretrial programs, defendants are increasingly required to cover the cost of their own drug testing, electronic monitoring, and other forms of supervision that may accompany release. In some cases, the cost of money bail would have been cheaper for the defendant than the cost of their supervision in the long term.”

Now think about this for a moment. Ms. McPherson is saying that the cost of releasing defendants through a public sector pretrial program is too high and supervising them is proving to be too difficult. If I am not mistaken, isn’t that what the commercial bail industry has been saying about public sector pretrial release for decades…that it doesn’t save money. Not only have we been saying it, we have shared third party research study after research study that shows that public sector programs do not save counties money, but rather cost them potentially millions.

“bail reformJust look at New Jersey. The argument made by those that support public sector pretrial was that their programs are capable of supervising defendants just as effectively as commercial bail and saving the county money because the person is no longer taking up jail space. Unfortunately, every study done has shown both of these statements to be wrong. Pretrial programs are not effective in supervising defendants. Studies show that defendants fail to appear for court much more often when supervised by a public sector pretrial program. Also, pretrial programs do not save money, but instead create a costly new layer of bureaucracy in an already cash strapped criminal justice system. In the New Jersey pretrial discussions, a Towson State Professor of Economics, testified that a pretrial program in New Jersey could cost the state upwards of $500 million a year. Regardless of this insightful research and expert opinion, New Jersey moved forward anyway and passed legislation to create pretrial programs across the state.

The unfortunate result is that New Jersey now needs to come up with more money (as predicted) to fund these so called “money saving programs.” And just for the record, and because I like to point out the obvious, commercial bail just continues to play its important role in the criminal justice system costing the people of New Jersey $0 and effectively supervising defendants and getting them to court.

The other aspect of this quote from Ms. McPherson that is shocking to me is the idea that she seems to think that supervision of defendants who are released via pretrial needs to be minimized. Are you serious? Letting defendants out for free and supervising them with taxpayer funded pretrial programs is one thing, but letting defendants out for free and not supervising them at all is both myopic and dangerous. If public sector pretrial programs are less effective than commercial bail when they actually try and supervise defendants, than how in the world are they going to be more effective when you don’t supervise them at all?

Public sector pretrial advocates are so driven to eliminate commercial bail that they are willing to let as many people out of jail as quickly and as irresponsibly as possible so that they can ensure their existence. Unfortunately in the process they undermine the validity of the criminal justice system in the process and put the public in danger for the purposes of achieving their own agenda.

It seems to me that those that support public sector pretrial programs don’t understand the purpose of pretrial release in the first place. It is not about release. It has never been about release. Yes a person is released from jail as part of the process, but the only reason you release them is based on a promise and a guarantee that they will appear at ALL court appearances. They best way to ensure that appearance is by financially tying that defendant and their loved ones to that release, and supervising them while they are out. You remove either of those elements and you will have a less effective mechanism for ensuring appearance. We have been saying this for decades and the research has proven this for decades.

The private sector/public sector pretrial debate has been going on for over 50 years and I don’t expect it to end any time soon. I do give the Pretrial Justice Institute credit though for coming out and admitting that “FREE” supervision is costly and ineffective. But even with that admission, which I don’t think they even fully understand the ramifications of, I do not expect them to change their goals or mission anytime soon.

What I do expect with certainty is that the public sector pretrial community will continue to shift and change their approach and narrative to attack the commercial bail industry. It is like throwing spaghetti on a wall and seeing what sticks. Unfortunately for the public sector pretrial community, their ideas are undercooked and not ready to serve to the public for free, despite their claims otherwise. They throw FREE release and supervision against the wall and now they find out it is too expensive. They throw risk assessments against the wall and now they find out that they are racially biased. They throw electronic monitoring against the wall and now they find out that it might be violating a defendant’s civil rights. And of course, the latest string of spaghetti they are throwing against the wall is the constitutionality of bail. In fact, they haven’t just thrown one strand of spaghetti but have thrown a whole handful of strands across the country. The question of whether they stick or not is still out there, but if history tells us something, the primary goal of these public sector pretrial advocates isn’t public safety or improving the effectiveness of the system. It is to completely eliminate the private sector commercial bail industry at any cost. They attack us like they have some personal vendetta against our industry, and care less about how effective we are at doing it. It really goes beyond common sense.

Meanwhile, in the face of all this craziness, the commercial bail industry will continue to do what it does. And that is ensuring that the criminal justice system has a chance to work; ensuring that defendants show up for court; and ensuring that victims get a chance at justice. After all, isn’t that what the pretrial release concept is all about in the first place?