Monthly Archives: August 2016

Bail Reformers Aren’t Waiting for Bail Reform

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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

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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.

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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.

MISSING FUGITIVES

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CHAPTER 1

MISSED CHANCES – THE GERALD BOYES CASE

Gerald Boyes Jr. missed two meetings with his parole officer.

It was his second time on parole for robbery in Florida. He’d been sent back to prison before because he kept getting arrested. A warrant was issued.

Little else happened — until detectives were called to his father’s home in rural Kentucky this past April.

His father had been bludgeoned with a hammer in the back yard. His father’s longtime partner lay dead on the floor inside, surrounded by blood.

Detectives tried to reach Boyes to inform him of the deaths. They grew suspicious when he didn’t return their calls, said McCracken County, Kentucky, Sheriff Jon Hayden.

A quick check revealed that Boyes was wanted for a parole violation in Florida. McCracken County Detective Captain Matt Carter and his partner were driving to Florida to try to find Boyes when one of them ran his name through a database that includes the names of people who sell items at pawn shops. Boyes, they said, had just sold his father’s distinctive Harley Davidson wallet — which was missing from the crime scene.

They made a U-turn and began driving north, toward the pawn shop outside Chicago.

“That was huge,” Carter said. “That was one big piece of evidence that tied him to the double homicide and also gave us his whereabouts.”

He said that same database also showed that Boyes had pawned jewelry near Chicago a week or two prior — within days of his violation warrant being issued.

“I don’t really have faith in the system at all. There were some serious missteps there.”

The database, Carter said, is updated frequently. It might have been possible to find the Chicago-areas sale before the killings.

Florida parole officers don’t have access to that database, which is run by a private company. Hayden said he paid about $1,200 for his officers to access it during one year.

Boyes’ supervising officer, who was also responsible for monitoring more than 50 other people, “did not have knowledge the offender was in the Chicago area at the time,” said Alberto Moscoso, spokesman for the Florida Department of Corrections.

Records from the department show that Boyes’ parole officer did a records check to see if Boyes had been arrested again. They show she visited his home and left a voicemail on his cell phone. They show no other efforts to find him until April 16 — when he died in a confrontation with police in Antioch, Illinois.

“I don’t really have faith in the system at all,” said Don Potter, Boyes’ stepbrother. “There were some serious missteps there.”

Police found Boyes in a rental car near a bar in northern Illinois. Officials said police fired on Boyes as he raised a gun to his head and fired a single shot.

Had he survived, Sheriff Hayden said, he “absolutely” would have been charged in the double killing.

 

CHAPTER 2

IN PENNSYLVANIA, SIMILAR STORIES

There have been similar cases in Western Pennsylvania.

Frederick Harris III, who’s awaiting trial on charges that he dismembered his mother and her husband, eluded arrest on a parole violation warrant for about nine months prior to the 2014 killings.

That same year, Kerrese Lawrence, who was on probation for a drug charge, was arrested for new crimes and bailed out. Officials encountered him multiple times in court and during a police stop but didn’t detain him. Instead, they scheduled violation hearings — one of which he skipped.

That spring, police charged him with killing his pregnant girlfriend. They obtained a warrant after the woman’s death.

It took Allegheny County officials about 82 days on average to catch probation or parole violators under their supervision, according to a Post-Gazette analysis of court data. It was slower than all but five counties in the paper’s analysis.

Statistics show that people who commit crimes often reoffend. About three out of every four people arrested on a felony had prior arrests, according to one study of state court data published by the Bureau of Justice Statistics. Yet there is little research looking at probation and parole violators and the time it takes agencies to track them.

Studies dating back to at least the 1980s have shown that the swiftness and certainty of punishment are key to reducing new crimes.

University of Wyoming professor Eric Wodahl found in research published in recent years that, if handled correctly, punishments that involve community service or electronic monitoring can be just as effective as jail time.

“Immediacy does matter,” Wodahl said of consequences. “For them to be the most effective, they need to be certain that it’s going to happen.”

Allegheny County Sheriff’s Sgt. Doug Clark logs locations the deputies visit each day, noting where they found fugitives and where they struck out.

The Allegheny County Adult Probation Office does not have anyone dedicated to finding violators. Instead, it relies on the county sheriff’s office to track them down.

But the sheriff’s office also has to track down people wanted on other warrants issued by the courts — such as those issued for people who skipped their trials or dodged hearings for failing to pay child support.

Estimates put the number of outstanding warrants somewhere between 10,000 and 20,000, but Sheriff William P. Mullen said he’s never received a reliable number.

The sheriff’s office has 12 deputies and three supervisors dedicated to finding fugitives. It’s common for them to get pulled to help guard courtrooms when others are on vacation, especially during the summer, when some veteran officers can take three weeks off. The sheriff said shifting some deputies from the fugitive offices to courtrooms reduces overtime.

“We’re really scrambling to stay under budget,” he said.

Police officers can also arrest people on probation violation warrants. All officers have access to a national database that tracks warrants, but Mullen said officers in some local departments fail to run those checks on people they encounter. It’s not unheard of, he said, for deputies to arrest someone on a violation warrant and learn that they had interactions with other officers a few days prior.

The sheriff said he’s pushed for the creation of a county-wide database that would allow his detectives to see more information about stops made by other departments.

But such a system wouldn’t completely solve the problem. Fugitives can leave the county or state.

 

CHAPTER 3

WHEN FUGITIVES CROSS STATE LINES

Antonio Covington eluded arrest on a Georgia probation violation warrant for five months, despite being arrested in North Carolina where he was known to spend time.

Authorities never found him — until police suspect he killed a man in Charlotte, N.C.

He’s not the only example of someone who left the state and became a repeat offender elsewhere. A man wanted on an Illinois parole violation warrant was charged this spring with shooting a man in Iowa. A Pennsylvania man eluded authorities for three years despite multiple arrests in North Carolina.

Delays sometimes occur when people are sentenced in one county and supervised in another.

These stories highlight the ways in which probationers and parolees avoid detection by leaving the states in which they were convicted — sometimes with little effort to hide their identity.

Covington’s Georgia case dates to July 30, 2013, when someone called 911 to report that a man was driving erratically. A police officer stopped the car and found multiple drugs and guns, which Covington was prohibited from owning.

Covington later pleaded guilty to gun and drug violations, and a Gwinnett County judge ordered him to spend time at a drug treatment facility and then participate in an aftercare treatment program as a condition of probation.

Covington got kicked out of the aftercare program July 7, 2015 “due to non-attendance.” A probation officer obtained a warrant a month and a half later.

Delays sometimes occur when people are sentenced in one county and supervised in another. Covington’s latest address was in Fulton County, about a half hour away. Violation paperwork for someone supervised in Gwinnett County would have to be completed by a Gwinnett County officer, according to Georgia officials.

In the interim, Covington was arrested in North Carolina for illegally possessing a prescription drug and posted bail in the case. The Georgia probation violation warrant makes no mention of North Carolina or his new arrest.

Bert Flewellen, a spokesman for the Georgia Department of Community Supervision, said he was not permitted to discuss individual cases under state law.

He said probation officers do have the resources to conduct records checks on the people under their supervision and do so “at random, for-cause, and at designated milestones during supervision.”

Probation officers can file additional paperwork in court if they learn of new arrests after a violation warrant has been issued. That paperwork was not filed in Covington’s case.

Covington appeared again March 31 of this year, when police say surveillance cameras spotted him and another man dumping 19-year-old Ernest Cash Jr. at a Charlotte, North Carolina, hospital. Cash, who had been shot, died the next day.

Police later charged Covington and another man with killing Cash.

 

CHAPTER 4

HOW TO CATCH A FUGITIVE

The probation department in Hennepin County, Minn., one of the top-performing jurisdictions, is run by a former law enforcement officer.

“What keeps me up at night is whether or not [violators] are out committing a crime, so this is a very high priority for our department,” said Chester Cooper, who worked for years in the local sheriff’s office before he joined the Department of Community Corrections and Rehabilitation.

Cooper and his predecessor created a position that exists in few others departments: They have one officer whose sole job is to work with other local agencies to track violators.

Probation Officer Beth Heidmann, who works in Hennepin County, Minn., spends her days collecting background information on probation and parole violators and coordinating their arrests with local agencies. (Courtney Perry for the Post-Gazette)

Officer Beth Heidmann works out of the local sheriff’s office. Each day, she gathers a list of fugitives and digs through their case files, social media accounts and other sources to find leads on their whereabouts. She passes the information along to other officers who will do the actual arrests.

She has access to dozens of members of the sheriff’s office, members of a federal fugitive task force and anyone she can contact at other departments.

Here, it takes officials an average of 43 days to arrest someone on a county probation violation warrant.

“I’m concerned about the 43, so we need to work on that,” said Cooper, the director, after he learned the results of the Post-Gazette analysis.

Before Heidmann’s position existed, the office relied on two officers with few resources to catch the fugitives. Cooper and his predecessor abandoned that system out of concerns for the officers’ safety.

That system rejected in Minnesota is similar to one that is currently being used in Pima County, Ariz., where officials take more than twice as long to capture fugitives on average.

Ken McCulloch, director of field services for Pima County Adult Probation, said he didn’t think it was fair to compare his department to many others in the country. Pima County officers can arrest people without a warrant and often issue warrants when they don’t know the whereabouts of someone they’re supervising, he said. Hennepin County officials said they like to reserve warrants only for people whose whereabouts are unknown or who are especially dangerous.

“What keeps me up at night is whether or not [violators] are out committing a crime.”

Among the people tasked with finding fugitives in Pima County is Officer Mark Echavarry. He’s part of a two-person team that works to arrest people who are being supervised for domestic violence cases. Their positions are grant-funded and their resources are limited.

Echavarry and his partner work alone in an old, rusted sedan that was seized as part of a prior investigation. They don’t have lights and sirens. They don’t have bars in the back of the car, so if anyone fights arrest they have to call local police to take them to jail.

He spends some of his time tracking down violators, but also has to juggle meetings and compliance checks. They also have to do background work before heading out on cases.

On one day in May, he only had time to make one stop, where he caught a probation violator. But he had at least four new warrants waiting for him when he returned to the office.

Echavarry says he’s asked for more resources in the past but hasn’t received them.

“It’s a sticking point with us,” he said.

 

CHAPTER 5

FAILURE TO ISSUE WARRANTS QUICKLY

While research shows rapid consequences can help prevent probationers or parolees from committing new crimes, officers will at times hold off on filing warrants. They hope the people they are supervising will start following the rules again and avoid jail.

But that doesn’t always work.

Francisco Fernandez, 23, missed a drug test in November, officials said, and met in person with his probation officer the following month. Fernandez, who was on probation for a drug case, then missed four more drug tests and moved without the permission of his probation officer, according to court records.

“Jumping on that warrant immediately, for a relatively low-level offender, may not get the benefit.”

He later told a police officer “he hasn’t reported because he wanted to get his [medical] marijuana card first,” according to a police report.

The Pima County Adult Probation Department’s policy gives officers 90 days to try to locate many probationers after their last face-to-face contact with them. For people who have been deemed especially likely to reoffend, the window is tighter — three days.

“Jumping on that warrant immediately, for a relatively low-level offender, may not get the benefit,” McCulloch said, noting that some people might need time to get sober or do other things for their well-being.

One hundred seventeen days passed before an officer filed a request to revoke Fernandez’s probation.

During that time, the officer visited addresses for Ferndandez, left a voicemail for him and sent him a certified letter.

A week after the request, on April 12, the court issued the warrant. Warrants like the one issued to Fernandez normally go to the department’s absconder team. Fernandez’s officer decided to hold onto the warrant because he “was hearing things that the probationer was in the vicinity and might turn up,” McCulloch said. “Looking at the case notes, I don’t see any [indications] that he was checking other residences or physically following up.”

Police found Fernandez April 27, when they responded to a call that a 7-year-old boy had been shot at an apartment building. The boy, the nephew of Fernandez’s girlfriend, survived.

Fernandez gave differing accounts of the shooting during an interview with police. During the last one, he said, “I think the gun was loaded and I accidentally pulled it,” according to a police report.

McCulloch said he was comfortable with the way his officer handled the Fernandez case.

“He was kind of doing a wait and see thing.”

Bail Reform: The True Cost of FREE

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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?

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