via – www.pretrial.org
via – www.pretrial.org
While Minneapolis simply considers eliminating the police department altogether, the unregulated Minnesota Freedom Fund is not so quietly making their mark on criminal justice: wealthy donors are giving millions of dollars to disrupt the existing bail system – an effort to circumvent the purpose of bail in holding defendants accountable while on pretrial and replace it with a system where the government picks who stays in jail.
According to these wealthy donors and the Minnesota Freedom Fund, what they call the “cash bail system” is unfair, so you guessed it—they are simply buying their collective way out of it by posting bail for anyone and everyone – regardless of charge, criminal history, ties to the community, or likelihood of appearing to court. Their purpose – to upend the accountable release of defendants and revert to their alternative government power universe based on pretrial risk assessment algorithms, which have been shown to be ineffective at predicting risk at best with a baked in permanent imposition of past societal bias at worse.
Unlike our existing constitutional right to bail which, while not absolute, is pretty close, the new system trusts the government to decarcerate jails, a trend which, of course, we already know the result of from a generation ago: the federal government went from a 24% pretrial incarceration rate to 72% today all because “cash bail” isn’t fair.
Based in Minneapolis, the Minnesota Freedom Fund received over $20 million in contributions in less than a week after the George Floyd incident took place. The fund is going to use the money to bail out criminal defendants and also to bail out those held in federal immigration custody. To say that this will disturb the existing balance judges strike between the right to bail, risk of non-appearance and risk to public safety would be the understatement of the century. Also, it is important to realize that for the Fund to actually post bonds, they will need to post bonds in some pretty severe cases.
Bail Funds Nationally – Unregulated and Unchecked
“The Bail Project,” the most recognized organization on the national scene to bail people out, has used their tug at the heartstring approach to raise millions – having now posted bail for over 10,000 defendants nationally. Their success in crowdfunding has led the effort to de-justify the system. Do they hold these defendants accountable to appear in court? Do they even have the authority to do so? No and No. Do they disclose their funding sources and are they regulated by the state? No and No. Does the Bail Project operate in your jurisdiction? You can check here.
Despite all of this, the most concerning issue is that none of these funds, with the exception of the funds in New York State, are regulated by any entity. There is no requirement that the funds, like in New York, are required to disclose who donates to such funds. What does this mean? Foreign governments could donate to the Minnesota Freedom Fund or any other fund to bail out a person or persons they would like sprung from jail or from detention by federal immigration authorities. Yes, immigration too. So could George Soros, John Arnold, or anyone else. And, no one would ever know. In addition, organized crime could easily set up and participate in such funds. There are no background check requirements for anyone doing a charitable bail fund, even though it is defined as engaging in the bail business except not for profit. Which, arguably, means that the federal background check requirements for transacting insurance business would apply.
Meanwhile, the federal and state governments are simply allowing these “bail disruptors” to do their “disrupting” without any transparency or oversight. No reporting is required. No licensure is needed. No background checks. No regulation. Nothing.
In contrast, New York State wisely regulated charitable bail funds through the New York Charitable Bail Act a few years back to make sure they serve specific key functions: (1) they target low-level matters, misdemeanors only, and by capping the bonds that can be posted by a charity at $2,000 or under; (2) to require the person to be indigent, i.e., they are financially unable to post bond; (3) appropriate background checks; and, (4) to make sure that there is transparency by requiring disclosure of donors, reporting, etc.
Every jurisdiction in the United States should be looking to have some transparency and oversight of this process. We cannot allow these “disruptors” to expand their footprint with dark money designed specifically to cause harm to the criminal justice system. Under the guise of “fairness,” these funds are exploiting the bail system by pushing to eliminate the right to bail and transfer the power to the government to decide who is in and who is out.
In the end, we can’t think that having the rule of law and society simply fall apart is the answer to all of this. If the disruptors have anything to say it about it, it certainly will be the answer, particularly as long as state legislators and local officials turn the other way and let this continue to happen.
For those just waking up to the end cash bail mantra, it’s pretty simple: for one to be in a position to pay cash bail and another not is unconstitutional. That’s the supposed theory of evil cash bail, and has been the theory since Judge Murphy gave the Civil Rights Corps an unexpected win in the Maurice Walker case, later overturned by the U.S. Court of Appeals for the Eleventh Circuit. Also recall that the U.S Court of Appeals for the Fifth Circuit has previously found that, regarding the right to an affordable bail, “no such right is in view.”
Last week, another ruling has come down in Nevada on the issue of the affordability question of cash bail in a lesser known case, Valdez-Jimenez (Jose) vs. Dist. Ct. (State) C/W 76845, which has come to the same conclusion…with a twist.
Enter Justice James Hardesty of the Nevada Supreme Court, a known bail reform warrior, loved by the activists, and cherished by the end cash bail movement. Several years ago, then-Chief Justice Hardesty took to the radio to call for a move to the federal system. This was premised on the idea of this supposed right to an affordable bail. At the time, the American Bail Coalition testified before the Nevada Assembly that this was an inappropriate interpretation of law by a sitting Justice that, in fact, was not the law.
Justice Hardesty then penned a letter to the Nevada Assembly in response to such testimony, re-asserting that there is a federal constitutional right to an affordable bail. The gist was that cash bail is unconstitutional so we need to abandon the right to bail in the Nevada constitution and go to the federal lock everybody up system to make things more fair to people.
“Incarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the Fourteenth Amendment.” – Justice Hardesty
Of course, the U.S. Court of Appeals for the 5th and 11th Circuits later affirmed that Justice Hardesty’s extra-judicial opinion issued to the Nevada Assembly interpreting federal law, in his effort to try to influence Nevada constitutional and statutory legal policy, was erroneous.
Despite all of that, Justice Hardesty has now taken it upon himself to not only not recuse himself despite his past public comments, but to instead write the majority opinion for the Nevada Supreme Court in the Valdez-Jimenez case. In this case, Justice Hardesty ruled against himself—or at least what he told the Nevada Legislature. He held that there is not a right to a bail one can afford, and that instead, the standard for evaluating bail is whether it is excessive or not.
Of course, activist groups and newspapers claim this as a huge victory and are proclaiming a sea change, even after losing the case. If you read one article closely, you’ll notice that the article does admit that the plaintiffs “technically lost.” The reality: they didn’t technically lose—they indeed lost. There is no right to an affordable bail pursuant to the Nevada Constitution. That was the whole point.
Justice Hardesty, writing for a unanimous Nevada Supreme Court, said: “Though there is no constitutional requirement that bail be in an amount the defendant can afford to pay, see Malley, 50 Nev. at 253-55, 256 P. at 514 (stating ‘a mere inability to procure bail in a certain amount does not of itself make such amount excessive’), consideration of how much the defendant can afford is essential to determining the amount of bail that will reasonably ensure his or her appearance and the safety of the community.”
Justice Hardesty did, however, go a little bit further than he needed to go.
The U.S. Court of Appeals for the Fifth Circuit has said that all that due process requires is a meaningful opportunity to be heard, generally within 48 hours of arrest. Instead, Justice Hardesty applied a heightened evidentiary standard on prosecutors to prove by clear and convincing evidence the need for bail by, you guessed it, interpreting federal law. The problem is that he applied the standard for preventative detention (denial of bail) in the federal system to a bail decision under the Eighth Amendment and Nevada Constitution (setting of bail). Without getting into the nuances of constitutional law, let’s just say that means Justice Hardesty’s interpretation is apples when the U.S. Supreme Court’s opinion would be oranges.
Nonetheless, and despite all of this, a prosecutor in Nevada can still easily request bail, a judge can still grant it, and rather than putting up proof by a preponderance of the evidence a prosecutor will have to get to clear and convincing evidence. But regardless, all of these findings will rarely be overturned on appeal due to the application of the abuse of discretion standard.
So, we’re right back to where we were—judicial discretion to impose bail that is not affordable, but instead that is merely not excessive. Said the Court, “where the defendant has an extensive history of failing to appear for court proceedings and few ties to the community, bail will likely be necessary.”
While Justice Hardesty makes a habit of erroneously interpreting federal law, something we hope the Clark County District Attorney will take up with the U.S. Supreme Court, the reality is that Justice Hardesty and the Nevada Supreme just ruled against the very principle of law that lead us down the bail reform path in the first place—that one cannot afford his cash bail, not fair, unconstitutional. Not so, says Nevada’s leading bail reform warrior, Justice Hardesty.
Last September, as part of a national push for criminal-justice reform, Robert F. Kennedy Human Rights, a charitable organization, announced a plan to pay the bail of every woman and minor held in New York City’s jails. According to the group, run by Kerry Kennedy, the slain senator’s daughter, “access to justice depends on whether you can afford bail. The majority of people incarcerated in the notoriously violent Rikers Island are behind bars for the crime of being too poor.”
This is a favorite theme of the reformers, but most Rikers inmates are accused of serious crimes. Around 11.4 percent of the population is there for murder, attempted murder, or manslaughter; 20 percent are in for robbery or burglary; and another 25 percent face charges involving weapons, felony assault, sale of drugs, or rape or other sexual offenses. New York’s jails are not crowded with people whose only crime was jumping a subway turnstile or smoking weed; the average number of people held in Rikers on a given day for fare-beating is two, and for pot possession, one. And “the majority” of Rikers inmates are behind bars because they’re serving out a sentence, are ineligible for bail because of outstanding warrants, or are awaiting trial for a serious crime—not because they can’t afford bail. Even the majority of women and juveniles at Rikers, the target of the Kennedy group’s efforts, are ineligible for bail.
Among those in Rikers for serious crimes, some have not met the bail set for them. These inmates are the focus of the bail-reform movement, which seeks to eliminate “money bail.” Demanding a cash bounty for freedom, advocates say, is a form of ransom that ensures that the rich go free, while the poor remain in jail.
Their primary exhibit is the case of Kalief Browder, a 16-year-old Bronx youth on probation for stealing and crashing a truck. He was arrested for stealing a backpack containing cash and electronics, which he denied having taken. Bail was set at $3,000. Insisting he was innocent, Browder wound up spending three years in jail, awaiting trial. He was eventually released but committed suicide four months later. His family blames his death on the two years he spent in solitary confinement and the abuse he suffered from guards. Browder’s case has become a rallying point for the abolition of money bail, but lack of funds wasn’t the real problem. His mother raised the money necessary to bail him out within a few months; but by that point, the courts realized that Browder was already on probation, and his bond was revoked. He wasn’t really bail-eligible to begin with.
Advocates describe a picture of hopelessly poor families, unable to scrape together a few hundred dollars to get their loved ones out of Rikers. They don’t talk about families tired of dealing with relatives perennially in trouble with the law; some may decide that they’d rather see the troublesome relation stay in jail. On average, 75 percent of Rikers inmates have been there before, often several times in the same year. The median age of a Rikers inmate is 36. It’s understandable that their relatives could lose patience with them, after a certain point.
Jurisdictions that have ended money bail have seen troubling consequences. Los Angeles reformers are angry that judges are remanding people charged with serious crimes, based on their risk to the community. Newark saw a spike in shootings after money bail was ended, possibly because arrestees returned to the streets to settle the disputes that had led to their incarceration.
After heated criticism from the NYPD and Mayor Bill de Blasio, Robert F. Kennedy Human Rights terminated its “Mass Bail Out” program to “end wealth-based detention.” The group had done its cause no favors by bailing out 18-year-old Rickeem Parker one week after the eight-time arrestee was captured on video brutally beating a corrections officer. Parker then skipped bail, not showing up for his next court date. Bail reformers might have the best of motives, but they rely too uncritically on human goodness—a precarious bet in a field that includes repeat violent offenders.