A-1 Bail Bonds » Bail in America

What Price Cashless Bail?

James Lindblad — Wed, 09 Dec 2020 18:23:09 +0000

A referendum on the California ballot will abolish cash bail but increase preventive detention—splitting state progressives into pro and con camps.

In just three weeks, California could become the first state in the nation to abolish money bail when voters go to the polls to decide the fate of Proposition 25. Should the measure pass, Senate Bill 10, which then-Gov. Jerry Brown signed into law two years ago, will go into effect. As soon as the measure was signed, however, it was immediately stalled by the bail industry and its backers, which gathered the signatures to subject the legislation to a November 2020 referendum. A Yes vote on the measure will ratify Senate Bill 10 as a law; a No vote will strike it from the books.

The legislation was initially introduced nearly four years ago. Its authors sought to “reduce the number of people detained pretrial, while addressing racial and economic disparities in the pretrial system,” winning plaudits from liberals and progressives of all stripes for its blunt disavowal of money bail, a pretrial detention mechanism that is ineluctably racist and classist.

The forces behind the referendum are led, not surprisingly, by the bail bond industry, which has become a 21st-century behemoth. The two biggest backers of the bail industry, both multinational corporations, are worth a combined $50 billion. A council member of the American Legislative Exchange Council, the right-wing “corporate bill mill,” is chairman of the American Bail Coalition.

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But the fight over Proposition 25 isn’t a straight-up battle between the industry and social-justice reformers. In fact, most of the activists in the End Cash Bail movement have joined the industry they despise in opposing the measure. They argue that the amendments that the bill’s authors were compelled to accept in order to get the bill through the legislature actually would make things worse for those accused of crimes. For their part, the authors say that if the law is upheld by the voters, it can be improved, while if it goes down this November, bail reform will be dead in California for the foreseeable future.

In place of cash bail, Senate Bill 10 ended up expanding the use of predictive algorithms, which movement activists say will condemn defendants to preventive detention. It will also widen judicial discretion in a state where judges currently set the highest money-bail amounts in the country. “There is a lot of support for ending money bail outright,” Ivette Alé, a bail abolitionist in Los Angeles, boiled down the case of the activists opposed to Proposition 25. “We want to end money bail,” she told me, “not give more power to the judiciary.”

Not surprisingly, the bail bond industry has made hay with the left’s opposition to the measure—indeed, it has co-opted progressive messaging about justice to argue that money bail should be a constitutionally guaranteed right. “Every time they try to use our talking points, we tell them to go fuck themselves,” Lex Steppling, an L.A.-based abolitionist, told me. But his anger, and that of the movement, is also directed at the measure itself. “SB-10 would fund law enforcement at an even greater scale and give them complete dominion over people’s lives,” he said. Many of the bill’s original sponsors—including the ACLU—agree.

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Supporters of Proposition 25 argue that the proposition is the only chance to end money bail—which in California averages $50,000. The legislative process took too much “political capital” to try reform again, says Assemblymember Rob Bonta, who co-authored the bill with state Sen. Robert Hertzberg. “This is our shot. Once there’s no money bail, then we can talk about how to perfect this system.” Moreover, he added, the legislature is generally loath to reconsider a reform that voters have defeated. “I just don’t see that happening,” Hertzberg said. “It has a chilling effect on the legislature.”

Proposition 25 is undeniably a “compromise,” Hertzberg said, but “the perfect cannot always be the enemy of the good.” The problematic “pieces of the law can be changed, and it can be changed so much more easily if we don’t have the bail industry and the insurance companies buying our politicians,” said Jess Bartholow, policy advocate at Western Center on Law and Poverty, an organization that supports the proposition and sponsored SB-10.

BUT THE BAIL INDUSTRY, parasitic as it might be, does not set money-bail amounts. That’s the judges’ prerogative. And California’s $50,000 average bail is more than five times the national average. Under the current money bail system, California’s administration of justice approaches farce, according to California judges themselves. In Orange County and Los Angeles County, for example, judges routinely underestimate how many people they detain, an academic study found in 2018. They also treat the bail schedule—a guideline for assigning money-bail amounts to a given crime—as unquestionable rules. “Individualized assessments, though permissible, are rare,” authors Sarah Ottone and Christine Scott-Hayward concluded. “Notably absent from bail hearings was any discussion of the defendant’s … ability to pay,” even though that consideration is required by law.

The forces behind the referendum are led, not surprisingly, by the bail bond industry, which has become a 21st-century behemoth.

“Somebody will come through,” one judge told the researchers, “and it’s Costco justice. They’re doing things really fast.” Efficiency is paramount for the administrators of a carceral state. “I don’t have much to do with bail,” another judge said. “I just follow the [bail] schedule.”

“This is not a process where everyone is treated the same,” a third said. “It’s not a perfect system, “but I’m not aware of a better way to do it.”

Proposition 25 is touted as precisely a “better way.” If it succeeds, California will “reduce incarceration,” according to Lenore Anderson, executive director of Californians for Safety and Justice, a sponsor of Senate Bill 10. “We’ll see a decline in the number of misdemeanors that are held pretrial.”

Misdemeanor detention may indeed diminish. One estimate, from the Public Policy Institute of California, found that 142,000 people accused of misdemeanors would be free. Using the PPIC’s data, the Judicial Council, the highest judicial rule-making body in the state, put the estimate at 120,000.

But the PPIC’s analysis isn’t definitive, as the authors acknowledge. The authors cannot estimate how many people will be “preventively” detained by a predictive algorithm, or whether judges will override the algorithm. And though SB-10 creates carve-outs for a number of misdemeanants, making them ineligible for algorithmic detention at all, there are ten broad exclusions—and the PPIC accounts for just five of them. Given judges’ consistent use of bail schedules as the rule, and not a suggestion, it is unlikely that algorithmic prediction will turn “Costco justice” into the real thing.

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Top judges played a central role in creating SB-10, and in splintering the early, broad coalition of supporters. The chief justice of California convened a year-long working group on “pretrial detention reform” and published recommendations for legislators in late 2017. “We took almost all of them,” Bonta said. Hertzberg confirmed the Judicial Council’s considerable influence over the drafting process. “Gov. Jerry Brown basically said, ‘Look, I need the support of the courts. I need the courts to say yes.’”

“Pretrial release decision-making is a judicial function,” Shelley Curran, director of Criminal Justice Services at the Judicial Council, told me, suggesting that the judiciary deserved influence over legislation it would ultimately administer. In the end, the judiciary didn’t merely give advice. It wrote SB-10. In consequence, Proposition 25 is more than a referendum on money bail. It’s a chance to expand the power of the courts and law enforcement.

MONTHS AFTER THE JUDICIARY released its recommendations in 2017, grassroots and radical supporters of SB-10 stopped hearing from the sponsors and authors, whom they had spoken with regularly during the drafting process. They knew the bill had been rewritten but didn’t know how; they were simply told to continue building a movement for SB-10. “That’s hard to do when you don’t know what bill you’re supporting,” one source familiar with the negotiations told me. From early 2018 until that August, none but the closest advisers to SB-10 knew about the changes to the bill. Not even “key assembly members and state senators” knew the bill had changed, John Raphling, senior researcher at Human Rights Watch, told me. But it had: It was a “bait and switch,” three sources said.

The language of reducing incarceration and confronting racism and classism disappeared. The revised bill expanded preventive detention and removed safeguards for predictive algorithms. The ACLU, one of the most deeply involved sponsors of the original bill, announced its opposition to the legislation days before Brown signed it into law.

Progressives’ misgivings begin with predictive algorithms known as “risk assessment” instruments, which produce “risk” scores for the accused, based on their history of arrests, convictions, and missed court dates. It matches their histories to similar ones, measuring how a given set of defendants might act in the future. The algorithms are, in short, profiling tools.

Progressives’ misgivings begin with predictive algorithms known as “risk assessment” instruments, which produce “risk” scores for the accused.

Already employed in one-third of American counties, these algorithms rely centrally on defendants’ prior record and, to a lesser degree, are proxies for poverty. They measure contacts with police, not “risk.” If a defendant previously pled guilty in the face of high money bail, which is common in California, that conviction will increase the score.

“These technical problems cannot be resolved,” reads an open letter from 27 criminal justice experts at MIT, Harvard, and other schools. A copy was delivered to Hertzberg, Bonta, and the Judicial Council. A similar letter from 119 advocacy groups says: “Pursue pretrial fairness and justice without adopting such tools.” The ACLU and the NAACP are signatories.

As of September 2017, 50 of California’s 58 counties already had algorithms on hand. They were not mandatory then as they would be if the proposition succeeds. Some are designed by corporations, like the COMPAS, which is used in L.A. County and San Diego County—the two most populous jurisdictions in the state. The COMPAS’s factors are a trade secret, though the tool does use a 137-part questionnaire that asks defendants questions like whether a hungry person has the right to steal.

Probation departments will be responsible for algorithmically “assessing” defendants. Their funding will increase accordingly, as the Judicial Council recommends. The measure will create more union jobs for probation officers, one reason why the Service Employees International Union, which represents many of the state’s probation officers, has supported the measure.

Though leaders of the Chief Probation Officers of California have indicated that the current algorithms discriminate on the basis of race and class, a new state law, which they cite approvingly, requires that algorithms be tested regularly, or “validated,” for bias. “No one I talk to even knows what ‘validation’ means,” Colin Doyle, staff attorney at Harvard Law’s Criminal Justice Policy Program, told me. “Any time you develop a machine-learning algorithm,” he explained, it’s trained on a data set—for example, a set of peoples’ prior records. It produces a correlation: O f the people with a certain kind of record, how many are re-arrested or miss court appearances? Validation merely “asks whether the general trend holds” on a second data set. “It doesn’t justify using the tool.” If policing is racist and classist all around, the validation tests won’t reveal any injustice.

AFTER THE LAST-MINUTE amendments were made to Senate Bill 10, its top line read, “It is the intent of the Legislature … to permit preventive detention of pretrial defendants.” That language never appeared in earlier drafts.

Legally innocent people cannot be “preventively” detained merely because a judge believes they are a risk to “public safety.” First, the defendant must get a robust hearing, where their counsel and the prosecutor present evidence and cross-examine the opposition. If Proposition 25 succeeds, the algorithm will present the evidence of “risk,” virtually bypassing defendants’ procedural rights.

Legally innocent people cannot be “preventively” detained merely because a judge believes they are a risk to “public safety.”

“Initially, we were strong supporters of the bill,” Stephen Munkelt, head of California Attorneys for Criminal Justice, told me. Now the organization opposes Proposition 25. “Preventive detention is not allowed except in these very narrow [circumstances] established in the Constitution.” Under SB-10, defense attorneys will likely have to object to “risk” scores that have a veneer of objectivity. When an algorithm is used, he continued, the judges’ presumption will likely be in favor of detention. “We are very confident that if [the courts] have this tool, the number of people held in jail pretrial will go up, not down,” Munkelt said.

Curran, the Judicial Council member, dismissed the argument that SB-10 subverts the presumption of innocence. “I’m always left scratching my head when people come out and say the presumption of innocence has been flipped,” she said. “A much greater, more fundamental problem is if somebody, a low-income person, is detained, they’re at risk of losing their job only by virtue of the fact that they can’t meet bail.”

Proposition 25 forces voters to choose between these two analyses.

Progressive opponents of Proposition 25 acknowledge that if they succeed in derailing the measure, securing a better reform won’t be easy. “I don’t kid myself to say it’s going to be easy to push a better reform,” one activist admitted. “It’s not. It’s going to require work.”

“The reason SB-10 even came about,” Raj Jayadev, co-founder of a bail abolition and anti-discrimination group, told me, “was because of the political pressure from communities on the ground.” That pressure, he said, would continue to mount until their goals are met.

via – https://prospect.org/justice/what-price-cashless-bail-california-proposition-25/

Updated Position on Pretrial Risk Assessment Tools

James Lindblad — Sun, 21 Jun 2020 21:52:51 +0000

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via – www.pretrial.org

Unregulated Charitable Bail Funds Upending the Criminal Justice System and Federal Immigration In Wake of Anti-Criminal Justice Momentum

James Lindblad — Mon, 15 Jun 2020 22:02:13 +0000

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.

via – https://ambailcoalition.org/unregulated-charitable-bail-funds-upending-the-criminal-justice-system-and-federal-immigration-in-wake-of-anti-criminal-justice-momentum/

Nevada Supreme Court Latest To Hold No Right To An “Affordable Bail”

James Lindblad — Tue, 21 Apr 2020 18:28:27 +0000

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.

via – https://ambailcoalition.org/nevada-supreme-court-latest-to-hold-no-right-to-an-affordable-bail/?mc_cid=9fc5314e3f&mc_eid=2db18e50e2

This case, known as Walker v Calhoun, tells us money bail is now 100% legal in the USA.

James Lindblad — Thu, 22 Aug 2019 17:36:41 +0000

Maurice Walker v. Calhoun, … by Wanda Peedee on Scribd

Bailing on Bail Reform

James Lindblad — Thu, 07 Mar 2019 02:05:50 +0000

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.

via https://www.city-journal.org/bail-reform?fbclid=IwAR2eocBhOabcq7qADpqo2uohpb0OKWxmhMPap_DrqQ6W9X8sT46IZMfOgSk

The Future of Bail

James Lindblad — Mon, 07 Jan 2019 18:49:37 +0000

The 4th-Generation of Bail Reform

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Chapman released the following statement regarding bail reform efforts in New York

James Lindblad — Tue, 26 Jun 2018 21:03:05 +0000

As New York considers implementing bail reform statewide, its citizens need to realistically consider the impact that will have on public safety and the states already overburdened budget as well as thinking through whether it will actually end up hurting the people that it seems designed to help.

In its attempt to placate the various special interest groups that have been banging the drum of so-called ‘criminal justice reform’ the New York State legislature appears to not be rushing into the same mistake that states like New Jersey have made. If Gov. Cuomo and the lawmakers in Albany are hell-bent on taking such an extremist position as ending the existing bail system as we know it, they at least owe it to the citizens of New York to provide some factual basis for their decision in the legislature.

These claims are made without any citation to a study that has been done to justify the “present need.” there’s no reference to the numbers of defendants or crime victims that the legislation will impact. There is no mention made all of the cost of this bill to the taxpayer.

The experience of other states that have implemented bail reform provides clear examples of the criminal chaos and economic disaster of shifting the costs from the defendants to the taxpayer and removing a key element of responsibility from the criminal justice system.

With no cost analysis included in the bill, taxpayers quite literally have no idea what this experiment is going to cost them. However, we can make some estimates.”

About Professional Bail Agents of the United States:
PBUS is the professional association representing the 15,500 bail agents nationwide as the “National Voice of the Bail Agent.” Since its founding in 1981, PBUS and its alliance with state associations have advanced the profession through legislative advocacy, professional networking, continuing education, support of bail agent certification, liability insurance and development of a code of ethics. Learn more at www.PBUS.com.

About President, Beth Chapman:
In her role as the President of the Professional Bail Agents of the United States (PBUS), Beth Chapman represents the interests of bail agents to the business community, citizens and government entities. Beth starred with her husband, Duane “Dog” Chapman, in “Dog the Bounty Hunter” which aired for eight seasons on A&E. Their second show, “Dog and Beth: On the Hunt” which aired for four seasons on CMT. Beth has spent over 30 years in the bail bond industry, and her husband, “Dog” has spent almost 40 years working in this industry.

University of Minnesota student takes on injustices in the bail system

James Lindblad — Thu, 06 Apr 2017 20:17:31 +0000

Freedom Fund nonprofit aims to level the playing field by helping low-income people in Minnesota post bail.

LEILA NAVIDI, STAR TRIBUNE

U student Simon Cecil, right, laughed when David Stribling told him his name “sounds like a senator name.” Cecil had posted Stribling’s $50 bail as part of a larger effort to help lower-income people, and, eventually, improve the entire system.

Simon Cecil sat on a metal stoop at the Hennepin County jail’s exit, studying a mug shot of a man he’s never met but just paid $50 to bail out.

Mug shots rarely capture a flattering likeness, and Cecil has learned that calculating the time it takes to discharge someone from jail is a science of educated guessing, so he stares at every face moving to the door, looking for David Stribling. After about half an hour, Cecil spots a guy who might be Stribling, but when he approaches, the stranger shakes his head and asks for a cigarette.

Another hour creeps by and a goateed man emerges wearing a brown flannel shirt and carrying a paper bag. This looks even more like Cecil’s man, but he’s wearing a dark hat that makes it hard to say for sure.

“Mr. Stribling?” Cecil asks. The man nods in the affirmative, and Cecil tells him he’s the one who posted his bail.

“Why did you do that?” Stribling asks cheerfully, an unlit cigarette hanging from his lips.

Cecil has this part down to a tight 30 seconds: I work for a nonprofit called the Minnesota Freedom Fund. We post small-amount bails for people who can’t afford to. All we ask is that you show up for your next court date.

“I’ll definitely show up to court,” Stribling promises of his citation for violating a no-contact order. He studies the business card he’s just been handed. “Simon Cecil,” he reads aloud. “It sounds like a senator name.”

Cecil is not a senator, but a 34-year-old University of Minnesota student readying to graduate with dual master’s degrees in business and public policy. Cecil started the Freedom Fund last fall, a so-called “bail fund” that mirrors similar efforts in places like New York City and Chicago.

If someone is held on a bond under $1,000 and doesn’t have the resources to post, Cecil will bail him or her out. As long as the defendant shows up for court, the money goes back to the fund. So far, all but two have made good on that promise.

The success of the fund is already gaining traction with others in the criminal justice system. A group that includes Hennepin County judges, defense attorneys and community organizers has been meeting since November with the goal of starting a larger-scale fund that could expand to more people and more counties.

Yet their endeavor goes beyond just posting bond. The group believes Minnesota’s bail system is fundamentally broken. And to truly solve that, they acknowledge, is going to be much trickier.

The evolution of bail

Contrary to the conventional wisdom of prime-time television dramas, the American bail system was not invented as a means of criminal punishment. Rather, bail is a contract designed to incentivize people to return to court after being accused of a crime, when they are still presumed innocent.

When someone is arrested, the court assesses the person’s risk of not returning. The judge also weighs the potential threat to public safety. In rare circumstances the person must remain in jail until the outcome of the case. In other cases, a judge will determine a defendant poses such little flight risk or community threat, the person can simply go free on their promise to return.

The third option is that the court will conditionally release the individual. If the condition is money, this is called a “bond.” As the bail system has transmutated over the centuries, this is where reformers say it has gone very wrong.

The Eighth Amendment to the United States Constitution prohibits “excessive” bail. Yet 34 percent of Americans charged with crimes linger in jail pretrial for no other reason than they can’t afford to pay, according to a 2016 report by the Harvard Law School. Most of these people come from poverty. In Hennepin County, defendants regularly sit in jail on low-cash bails they can’t afford.

“I’ve even seen some $10 bails,” said Hennepin County Judge Bridget Sullivan. “And people are just sitting in jail because they can’t make this really low bail.”

Making bail can be the difference between guilty or innocent. The Harvard study cited that defendants stuck in jail were 25 percent more likely to plead guilty than someone who’s been released.

“It isn’t fair that simply because a person can post bail they’re going to get a different resolution than a person who has to stay in jail,” said Chief Hennepin County Public Defender Mary Moriarty. “What that means is that people who can afford it get better justice than poor people.”

This disproportionate impact on the poor is the core driver in a wave of bail reform happening in America. New Jersey is the latest state to upend its bail system, implementing a nuanced screening process this year that reshuffles bond as a last resort.

Minnesota has so far been quiet in this national conversation. But behind the scenes, efforts like Cecil’s Freedom Fund are driving toward changing the system.

The Freedom Fund is one of about 10 such bail funds in the country, said Cherise Fanno Burdeen, executive director of Maryland-based Pretrial Justice Institute.

Burdeen calls these funds a manifestation of frustration with bail — a workaround of the system rather than a cure. But as reforms continue to take hold around the nation, Burdeen said, bigger changes may be on the horizon.

“By the end of this year we’ll be at a tipping point where there’s no going back,” she said.

The business of bail

Cecil now spends long days and nights waiting in the jail lobby to bail people out. But he once found himself on the other side of this equation.

In 2008, he’d been certified as an EMT, and attended the Republican National Convention to provide medical aid to demonstrators. Police picked him up in a mass arrest and he spent two days in the Ramsey County jail before a friend bailed him out for $200. Prosecutors ultimately dropped the unlawful assembly charge, and Cecil and others unsuccessfully sued the city for the arrest.

Cecil’s experience as a social activist helped shape his belief that something was systematically failing in Minnesota’s criminal justice system. About a year ago, with the help of his classmate, Adam Rao, Cecil pitched the idea for a bail fund to a program through the University of Minnesota’s Carlson School of Management, which gives seed money to students with innovative start-up proposals. The school awarded him $5,000, and he won another $5,000 through a business competition called the “Acara Challenge,” which also helps fund creative projects with real-world potential.

With $10,000 in the bank, Minnesota Freedom Fund was in business.

For clients, Cecil turned to defense attorneys, and he’s set up a deal in which public defenders send him names of defendants who are stuck in jail with small-amount bails.

Cecil quickly learned that posting bond can be more complicated than simply paying the fee. He usually arrives to the jail at night, and sits in the lobby for up to five hours waiting for the person to be released. He never knows whom he’s bailing out, so he buys a $1 mug shot when he arrives. Sometimes the person has outstanding warrants or probation issues, which can delay the process. Bail also requires exact change — cash only — and bailiffs frequently send him to make change at the nearby light rail pay station.

Cecil said he’s been frustrated to see bails that don’t appear to relate to motivating the person to return to court or public safety. He frequently sees bail set at $78, the exact amount of the surcharge for court fees in Hennepin County.

“That’s not about likelihood to return, that’s not about threat to the community,” he said.

Though Moriarty casts the bail fund as merely a “Band-Aid,” she said the fund is already making a difference. She said clients who can’t afford bail often take deals offered by prosecutors where they agree to plead guilty for a penalty of “time served” — meaning the time they’ve already spent in jail — instead of trying to fight it. This gets them out of jail, but creates a criminal record that could come back to haunt them.

The bail fund has allowed defendants options, Moriarty said. In one instance, prosecutors dropped charges before a case went to trial. In another, a client suffering from a mental breakdown was able to get psychological help — admitted to the Hennepin County Medical Center’s Acute Psychological Unit for a 72-hour lockdown — instead of languishing in jail, where her mental condition may not have been properly treated. One person was able get out of jail and show up for work, and otherwise may have lost his job.

When Cecil first launched the fund, he set out to post bail for at least 10 people, he said. But “once we hit 10 and it was working we just kept going.”

As of publication, he’s bailed out 33 people.

Building better bail

Judge Sullivan witnessed bail system’s disproportionate impact on low-income people in her first year on the bench. As a new judge, the court assigned her to the misdemeanor calendar, where she presided daily over a revolving line of low-level crime cases.

“Oh my God,” she remembers thinking. “There are people here with $50 bail and they can’t post. And they’re just sitting in jail.”

Sullivan had read about bail funds in other major cities, and wondered if something like it existed in Minneapolis. Last fall, she and another judge contacted Michael Friedman, director of Legal Rights Center, a nonprofit, advocacy-driven law firm that works as an alternative to the public defender system.

Since November, Sullivan, Friedman and a group of others have been meeting at the Legal Rights Center trying to figure out how to build on Cecil’s idea. They hope to file for nonprofit status this year, and they’re talking to donors about securing more funding. Friedman said it’s still too early to say what will come of this, but they hope to create a deeper fund that could reach more low-income people in jail, possibly widening the scope to other county jails in the Twin Cities.

But the fund is just the first step — not the end game, said Friedman. “[We’re] creating an organization that wants to be out of business,” said Friedman. “We’re working on this bail fund, but the goal is: the entire conception of money bail is flawed.”

Don’t abolish bail in Md., fix it

James Lindblad — Wed, 05 Apr 2017 19:52:43 +0000

Contrary to what advocates say, the Court of Appeals of Maryland — precipitated by Attorney General Brian Frosh‘s October 2016 letter stating that the state’s bail policy violates the constitutional bar on “excessive bail” — did not alter, change or “reform” bail practice. The court abolished it by fiat.

Now that the Maryland Legislative Black Caucus has endorsed inaction as its preferred course, allowing the abolition of bail in the state to go forward, it is clear that eliminating bail altogether (and by any means necessary) was always the end sought by bail critics. They never wanted to repair a dysfunctional system — they wanted it gone.

Now, under the new rules set to take effect July 1, bail must be set according to the defendant’s ability to pay or “afford” bail — a standard so low that all but a tiny fraction of the accused will be ineligible to post bond.

Instead, those awaiting trial will either be detained or released without a surety (or financial deposit commensurate with their risk to the community and likelihood of appearing at trial). Proponents of this new system call it “reform” and intend to address the inequities in current bail hearing outcomes that disproportionately impact communities of color and the poor in Maryland.

Release will still have conditions under a pretrial supervision regime that will operate like parole or probation for those that judicial officers deem appropriate. The problem is, pretrial conditions do not effectively ensure trial appearance.

As economists Eric Helland and Alexander Tabarrok found in 2004, in the most exhaustive peer-reviewed study of failure-to-appear (FTA) outcomes on bail, commercial bail is highly effective in reducing FTAs. Furthermore, bail bondsmen quickly and efficiently return fugitives to the authorities.

The reason is simple: Bail incentivizes trial appearance because those who post bail (the defendants or their loved ones) do not want to forfeit their funds or property if the defendant flees. Moreover, if the accused does become a fugitive, the bail bondsman has the right and a compelling interest to recover his investment by returning the defendant to justice.

Critics also charge bail is unfair and unconstitutional, but the facts belie this claim. In terms of fairness, the evidence is scant of any institutional bias against the poor built into the system — beyond anecdote and inference. In fact, state court rules prior to the Court of Appeals’ rules change specifically instruct court commissioners (who initially set bail) to consider the accused’s “family ties, employment status and history, [and] financial resources” in setting bond amounts.

Any bias is not in the code but in the application by human beings and jurisdictional disparities in bail setting, which is borne out by wide variations in bail outcomes across the state. Most, if not all, of bail’s impact on communities of color and the poor can be attributed to these differences. In other words, human bias, rather than policy, needs to be checked back.

On constitutionality, critics of bail charge the system has violated due process and the constitutional bar on excessive bail, but the grounding for this claim is specious at best. In the attorney general letter that set off the Court of Appeals ruling, the author cites the 1951 Stack v. Boyle U.S. Supreme Court case that examined the constitutionality of money bail.

The majority actually held that bail should not be set higher than “reasonably calculated” to assure the defendant’s appearance. The Frosh letter cites a concurring opinion, not the majority, in arguing for an affordability standard for bail, which does not have the weight of precedent.

Furthermore, a subsequent majority decision by the Supreme Court in Salerno v. United States in 1987 rejected challenges to detaining defendants before trial if public safety is threatened.

Together, Stack and Salerno affirm money bail’s legality and legitimacy if necessary to protect the public and ensure the accused’s appearance at trial. The Frosh letter even concedes this fact, writing: “no court has explicitly stated that there is a constitutional right to affordable bail.”

Bail, then, is constitutional, and the statute already allows for the “individualized assessment” that critics demand be conducted.

But the disparities and potential ineffectiveness of Maryland’s bail outcomes should not be ignored. Instead, real reform requires more data and accountability, including a deeper analysis of its effectiveness and efficiency as compared to alternatives like the algorithm-based risk assessment tool and pretrial supervision regimes (which both raise constitutional and bias issues of their own).

Under current law, court commissioners are neither expert nor accountable for their decisions, which contributes to biased and potentially unfair bail outcomes. A system that professionalizes and better holds these officials to account would be a major improvement over the status quo.

Since good public policy takes careful consideration, haste will not improve public safety, nor bring about a more efficient, effective, and, yes, fair criminal justice system.

Governor Larry Hogan and the state legislature should preempt the court’s pending rules change, reinstate bail as a real option for the accused of Maryland and call for more data and accountability in the criminal justice system.

Sean Kennedy (skennedy@mdpolicy.org) is a visiting fellow at the Maryland Public Policy Institute, a think tank based in Rockville, Md. He is the author of the recent study, “Bent, not Broken: Assessing Maryland’s Bail System and Reforms in Context.”