Category Archives: Bail in America

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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Seven Questions about Bail, the Bail Business, and being a Bondsman

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What do you think is the biggest misunderstanding people have about bail?

I think people would be surprised by how grateful the family members and the accused are for the services which we provide. Most bail agents have a desk drawer full of thank you cards and letters. Getting arrested is often a wake-up call that forces the defendant and his family to admit that there is a problem which they can no longer deny. As bail agents we often have a front row seat and even get to play a small part in watching people transform their lives for the better.

We get "Thank You" cards.

We work very closely with family members of the accused and other members of their community circle in order to assure that we can guarantee their appearance in court. This includes working with the parties to establish affordable payments for the bond.

People are also surprised to learn that the bail agent — who owns and operates a small business in the community he or she serves — is almost always personally financially accountable for the defendant’s appearance. There is a common misconception that there is some big insurance company that will pay for failures to appear or that the bail agent can cut some sort of a deal. The reality is that the bail agent personally guarantees the defendant’s appearance in court. If the defendant fails to appear the bail agent locates and apprehends the fugitive. Failing that, the bail agent pays a substantial penalty to the State. That’s why private, secured bail works so well.

What are some of the biggest challenges facing the bail bond business?

Our biggest challenge lies in continuing to educate politicians and policy makers about what we actually do and the vital role we play in the criminal justice system. Private bail enables communities to protect themselves and secure a defendant’s appearance for trial while allowing the accused to avoid pretrial detention. The secured bail which is posted by the independent licensed agents in jurisdictions across the United States is the single most effective and efficient way to achieve those goals. We do this at no cost to the taxpayers.

Many politicians and policy makers are unaware that defendants bailed by a commercial surety are far more likely to appear in court and far less likely, if they fail to appear, to remain at large for extended periods of time. Too often we find ourselves competing against publicly-funded government pretrial release programs that advocate the wholesale release of accused criminals with no real accountability.  Accused criminals have a constitutional right to bail. The question is who should pay for that bail? The friends and family of the accused, or the taxpayers?

What do you think about the efforts of Equal Justice Under the Law and their lawsuits seeking to end “money bail”?

Not much. It’s possible they have good intentions but they are naïve, very entitled and very miss-informed young men who have no real understanding of our criminal justice system or the purpose of bail. They are using these lawsuits and the threat of lawsuits to bully and extort small municipalities. They hold press conferences touting their goal of “ending the American money bail system.” But what they are really seeking is the immediate release of any defendant who simply says that he cannot afford the required bail. They believe that “caging” people is inherently wrong. Well, there is a reason we have jails.

This outfit claims that defendants are jailed because they are poor. The truth is that defendants are jailed because there is probable cause to believe that they committed a crime. The community has a strong vested interest in securing their appearance at trial. These lawsuits seek to force communities to immediately release accused criminals based solely on their unsubstantiated claim that they can’t secure their bond. This is absurd, and dangerous.

What do you think of current efforts to change the role of money in bail? What do you say to critics who contend using money in bail is unfair to poor people?

Money incentivizes people. People work for it and value it. A key reason why secured bail works so well is because people don’t want to lose their own money. The family of the defendant doesn’t want to lose money. The defendant doesn’t want to lose money and the bail agent certainly doesn’t want to lose money. Why do we require “money deposits” when we rent an apartment? By using a private licensed bail agent, friends and family of the accused pay only a small fraction of the bail amount (in most jurisdictions 10%, and strictly regulated by the State). The bail agent then pledges the entire penal amount of the bail bond to the court.

Affluent people don’t always need to use a bail agent to secure their bonds. They post their own assets and the fear of losing those assets (usually money) secures their appearance for trial. They are hardly “buying their way out” of jail. Rather, they secure their appearance by providing the court with tangible collateral security for their bail bond.

Bail agents permit bail for only a fraction of what the court requires and typically offer affordable installment plans to facilitate payment. Bail agents don’t discriminate against the poor. Rather, we routinely enable those of lesser means to secure their pretrial release by working with their family members, friends and social network. Ironically, the same voices that cry for an end to “money bail” frequently advocate GPS monitoring, drug testing and other cumbersome and very expensive measures that have little or nothing to do with securing the appearance of the accused at trial.

Most bail agents agree that there ought to be a mechanism to secure the pretrial release of truly indigent non-violent first time offenders with strong community ties. This was the original incentive for bail reform.  Today, most of the larger taxpayer-funded government pretrial release programs no longer even screen for indigence. The EJUL lawsuits seek the immediate release of accused criminals based upon their own unsubstantiated claim that they cannot secure their bond.

Detractors of private secured and accountable bail claim that the poor languish in jail solely due to their inability to secure bail. Almost always this proves to be untrue. The majority of pretrial jail inmates with low bonds almost invariably have other holds such as immigration and previous warrants for failure to appear or probation violations, etc. It’s an unfortunate myth that bail discriminates against the poor.

What’s the only thing worse than the telephone ringing at all hours of the night and day?

The telephone not ringing at all hours of the night and day.

How would the criminal justice system function without financially secured bail?

Not very well. Look no further than Washington D.C. and Kentucky for answers to that question. Those jurisdictions spend enormous sums of taxpayer money with very little to show for it. The only thing that matters in a pretrial release decision is whether the accused defendant will appear and whether there is an acceptable risk to public safety in releasing the defendant. The larger publicly-funded release programs like those in Kentucky and Washington D.C. fail on both counts. They do a lousy job of ensuring appearance and almost nothing to assure public safety. They claim they “supervise” through the use of drug testing, GPS bracelets and the like but how well can you claim to monitor behavior when you can’t even guarantee appearance?

As an example, Washington D.C.’s pretrial release program recently placed a GPS tracker on an accused murderer’s fake leg to assure his house arrest. The defendant promptly swapped prosthetic limbs and left his house to go murder someone. Right up until the police obtained a search warrant and found the fake leg with the GPS tracker still attached, the pretrial release employees maintained that the defendant whom they were “monitoring” was still confined to his apartment. In Kentucky, accused defendants are regularly released even with a history of many prior failures to appear.

In short, most of these publicly-funded pretrial release programs fail in assuring appearance and do nothing to protect public safety. They are great successes, however, at spending tax dollars.

Their latest panacea is “risk assessment.” They claim that by utilizing often-times secret algorithms that they can accurately predict who will commit future crimes and who will appear in court. These so-called “risk-based decision tools” are a cynical attempt to evade any accountability. People like judges are no longer responsible or accountable for release decisions; it becomes simply a matter of risk data analytics. What you end up with is a system that releases dangerous felons with prior failures to appear because they score out correctly. Non violent defendants with strong community ties remain locked up because of “brave new world” risk assessment scores that predict the likelihood of future crimes.

Any advice for new bail bondsman?

 Bail bonding is real risk assessment. We are in the business of risk and the stakes are high. Listen. Listen carefully. Practice listening. Listen to what they are saying and listen carefully to what they are not saying.

Get political. Be active in your community. If you don’t have a terrific work ethic, consider finding another line of work. Learn everything that you can about everything that you can. Join and participate in your local, state and national bail associations. It’s not the bonds you write that will ensure your success; it’s the bonds you don’t write.  Don’t lie to yourself. Keep your word.

Watch out for identical twins.

This week’s hare-brained alternative to Real Accountability

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Just ask the fugitives to pretty please come to court.

The preface: What we do is simple. We secure the pretrial release of accused defendants by entering into a written agreement with the State. This agreement (called a bail bond) guarantees the State that we will have the accused defendant in court each and every time as required in order for their criminal case to be adjudicated. If the defendant fails to appear and becomes a fugitive, we go out and locate, apprehend and surrender him or her back to the jurisdiction of the court. If we fail in this obligation, we pay a substantial cash penalty to the State, usually an amount equal to 1,000% of what we grossed for writing the bond. We are excellent at what we do, since bondsman who fail in their obligations quickly go out of business. In summary:

  • We secure their release from jail and pledge real money to the State to secure their appearance.
  • When a defendant fails to appear we locate, apprehend, and surrender them to jail.
  • In the rare cases where we are unable to arrest and return the fugitive, we pay a substantial cash penalty to the State.

We do this quietly and efficiently and at no cost to the taxpayers. We don’t bill the State for all the days that our defendants are not taking up jail space, nor do we bill taxpayers for routinely arresting and returning our bail skips. We play a vital role in the criminal justice system.

When you remove real accountability from pretrial release decisions, the results are predictable.

For example, in Philadelphia, where the courts routinely utilize government-run bail schemes instead of financially secured pretrial releases, defendants fail to appear in great numbers and no one is held accountable.

In December of 2009 The Inquirer reported that Philadelphia’s court system was in complete disarray. In an outstanding special report titled Justice: Delayed, Dismissed, Denied, they reported that some 47,000 wanted fugitives were on the street:

“The court’s bail system is broken. Defendants skip court with impunity, further traumatizing victims who show up for hearings that never take place.

There are almost 47,000 Philadelphia fugitives on the streets. Philadelphia is tied with Essex County, N.J. – home of Newark – for the nation’s highest fugitive rate. To catch them, the city court system employs just 51 officers – a caseload of more than 900 fugitives per officer.

In a sign of the system’s disarray, court officials had trouble answering when The Inquirer asked how much fugitives owed taxpayers in forfeited bail. At first, they said the debt was $2 million. Then they pegged it at $382 million. Finally, they declared it was a staggering $1 billion.”

The solution to having so many fugitives would seem obvious. Hire additional officers to go locate and arrest these criminals. And stop releasing defendants on unsecured fantasy bail bonds where no one is held accountable for their appearance in court. Instead, Philadelphia officials had a better idea. They simply erased 19,400 warrants from the system. Seriously. From the Inquirer:

“But in a sweeping move to lower Philadelphia’s staggering tally of 47,000 fugitives, top court officials have quietly dropped criminal charges against Sanchez and more than 19,000 other defendants who skipped court.

At the urging of Pennsylvania Chief Justice Ronald D. Castille and District Attorney Seth Williams, Philadelphia judges closed criminal cases and canceled fugitive bench warrants for thousands of accused drug dealers, drunken drivers, thieves, prostitutes, sex offenders, burglars, and other suspects.

“They were clogging up the system,” said Castille, a former Philadelphia district attorney. “You’re never going to find these people. And if you do, are you going to prosecute them? The answer is no.”

Of course the Inquirer was able to find some of these fugitives.

“I’m ecstatic,” said Reginald Newkirk, who had been facing two drunken-driving charges. Reached at his current home in Watha, N.C., Newkirk was told that the charges had been withdrawn. “I’m glad to hear that.”

In Newkirk’s 1991 arrests, police determined that his blood-alcohol levels were 0.273 and 0.277 – almost three times the legal threshold for intoxication at the time. Asked whether he had been drunk at the time, Newkirk, now 61, replied, “More or less.”

Another fugitive, Alfred Carter, who fled in 1989 before he was sentenced for a strong-arm robbery, is now living in Washington.

His conviction was set aside in an attack in which he admitted he left his victim dazed, weeping, and bleeding on a sidewalk in West Philadelphia.

“That’s good,” said Carter, 60. “I’m glad it’s dropped.”

And what about the nearly $1 billion owed by bail jumpers and their families who signed? Like the warrants, Philadelphia officials just pushed a button and made the problem disappear.

“In a single act, nearly $1 billion in debt owed to Philadelphia by onetime fugitives has disappeared.

Philadelphia’s court system, at the request of the city, wiped off the books longtime debt owed by tens of thousands of criminal defendants who failed to appear for their court dates.”

The order follows extensive reforms that came after The Inquirer published a series of articles in 2010 that shed light on widespread systemic problems in the city courts, including an ineffective bail system that for decades imposed no consequences for skipping court.

Criminal defendants are required to post 10 percent of bail in cash to earn release. Before recent court reforms, many routinely fled – on paper forfeiting the remaining 90 percent owed – but in practice little was done to catch them or collect the debt.”

In summary, Philadelphia has tens of thousands of fugitives because they are released from jail on unsecured bonds with no financial incentive to appear in court and no real accountability. Their solution to this horrendous problem was to purge the warrants and pretend that it never happened. Score one for the criminals; the accused defendants who actually went to court were saps. The same environment created $1 billion in uncollected (and unsecured) bail forfeitures. Philadelphia officials had a similar solution. They pushed a button and made the $1 billion in fantasy bail forfeitures disappear. Score another win for the criminals.

In Florida, where I live and write bail for a living, I have 60-days in which to timely satisfy a bail forfeiture, either by producing the fugitive defendant or by paying the forfeited bail amount. If I fail to do, I am prohibited from writing additional bail. I am literally put out-of-business for failing my obligation to the State. In addition, a civil judgment is entered against me and against the insurance company that backs my bail. If the insurance company fails to pay the judgment timely, they are prohibited from writing any bail. This is called accountability.

You would think that Philadelphia — in the light of the consequences of their experience with unsecured bail with no real accountability — would be open to instituting a pretrial release system with secured, financially accountable bail. You would be wrong.

Which brings us to our whack-job of the week. Cherise Fanno Burdeen. Cherise Fanno Burdeen is the Executive Director of an outfit called “Pretrial Justice Institute”. Ms. Burdeen is a staunch detractor of “money” bail. (Her position on “money” grocery stores and “money” police officers is unknown at this time.)

Cherise Fanno Burdeen, Just say "pretty please!"

Cherise Fanno Burdeen has a better idea than secured pretrial releases and real accountability. She thinks we are missing the point if we have the nerve to actually jail criminals who fail to appear for court. Here is what she told the Inquirer:

“The vast majority of people who fail to appear in court are not . . . trying to evade justice. For the most part, these are people who the courts don’t provide robust reminder systems, much like you or I get for haircuts or doctor’s appointments. The courts didn’t provide practices that doctors’ offices and salons learned a long time ago can nearly eradicate failure to appear.”

So if you are a bondsman who can’t celebrate Memorial Day Weekend with your family because you are busy chasing down a wanted fugitive, keep in mind that it’s your own fault. According to this dingbat Cherise Fanno Burdeen, you should have sent your client a friendly reminder and simply asked him respectfully and politely to “pretty please” go to his court date.

Amazingly , according to the Inquirer, Philadelphia now intends to actually use this mild-mannered lame-brained and naïve approach.

When the number of open felony warrants sky rockets once again, city officials will know exactly what to do.

 

Via – http://bailbondsman.com/this-weeks-hare-brained-alternative-to-real-accountability/

Bail Agents Show Solidarity in San Francisco – Update on Buffin v. San Francisco

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Below is a statement from Jeff Clayton, Policy Director for the American Bail Coalition, on the latest results of the US District Court hearing on Buffin v. San Francisco.

January 26, 2016
Statement on Motions Hearing, Buffin

Today, Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California conducted a hearing on several motions filed in Buffin v. San Francisco, a lawsuit challenging the use of money bail schedules and by extension the American Bail System. In the hearing, Judge Gonzalez Rogers rejected the Plaintiffs’ initial filings because the documents were insufficient in as much they failed to state a claim which would warrant granting any relief whatsoever.

In rejecting the claims made by the Plaintiffs as insufficient, Judge Gonzalez Rogers granted the City of San Francisco’s motion for a more definite statement of matters contained in the complaint, and required the Plaintiffs to file a new complaint within 30 days or otherwise face dismissal.

Judge Gonzalez Rogers also denied Plaintiffs’ motions both for preliminary injunction and class certification. Both were denied due to the complete lack of merit in the Plaintiffs’ initial complaint. She also granted the State of California’s motion to dismiss the State as a defendant based on the doctrine of sovereign immunity.

In a clear expression of frustration, Judge Gonzalez Rogers pressed the Plaintiffs’ attorneys on their theory of the case, continually saying she understood the big picture argument that Plaintiffs were attempting to make but did not understand the legal analysis that would allow them to get the relief they were seeking. Due to the general and unclear theory being advanced by the Plaintiffs, at one point the Judge indicated she did not think there was a valid legal theory upon which relief could be granted, and even went as far as to inquire of Plaintiffs’ counsel whether they had ever practiced criminal law in California or understood how the California criminal court system functioned.

In a show of solidarity, representatives from the American Bail Coalition, California Bail Agents Association, and the Golden State Bail Association attended the hearing together. The California Bail Agents Association’s motion to intervene was denied, but it was only denied because it was premature—premature because the Judge said the initial complaint was so deficient that there was presently no live controversy in which CBAA’s attorneys might engage. CBAA’s motion is still pending, but will only be taken up by the Court if Plaintiffs submit a new complaint that overcomes the deficiencies indicated by Judge and which survives a motion to dismiss.

While this is not the end of this case, today’s hearing is a win because the Plaintiffs’ legal theory finally met its first test on the merits, which it did not survive.

via – https://www.aiasurety.com/home/news/CompanyNews/aia-company-news-for-the-year-2015.aspx/articles/417

Will Delaware end cash bail?

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About 60 men and women, wearing the clothes they were arrested in hours earlier and shackled at their ankles and wrists, shuffled one at a time up to the judge who would decide whether they should be released from the Washington, D.C., jail.

A new case was heard every three minutes. And cash bail had nothing to do with defendants’ ticket to freedom.

Those charged with nonviolent crimes were set free on the promise they would appear at the next court hearing – including an accused drug dealer, a cocaine user, a thief and a string of others.

Those considered the most dangerous – such as a man arrested for not having a license for the .42-caliber pistol in his car – were sent back to jail to await trial.

This is the changing face of American jurisprudence, where releasing a defendant from jail is not based on how much money he or she can pay. The movement stands on the notion that cash bail punishes the poor, who end up spending more time behind bars than those with the means to pay for their release.

Washington, D.C., eliminated bail two decades ago, and other jurisdictions may soon follow – either by choice or as a result of federal lawsuits challenging the constitutionality of incarcerating poor defendants who cannot afford bail.

The bail system in Delaware is now under scrutiny as Delaware’s Supreme Court Chief Justice Leo E. Strine Jr. shines a light on the disproportionate number of African-Americans incarcerated and Gov. Jack Markell calls for criminal justice reform while examining ways to reduce prison overcrowding.

“It’s not working when a single mom gets stuck in detention because she can’t come up with a hundred bucks and has little to no family support, but a dangerous drug dealer can get his minions to bail him out,” Markell said during a speech on criminal justice reform Thursday in New Orleans. “Our bail process needs to change, and it can be done, but only if we’re cognizant of the full extent to which everyone involved in our criminal justice system must adjust their thinking.”

At a hearing in Wilmington on Friday for the Access to Justice Commission’s Committee on Fairness, experts in criminal law will push for Delaware to adopt Washington, D.C.’s strategy.

About 88 percent of the District of Columbia’s released defendants return for their trials – partially because of an elaborate pretrial services system where defendants are required to frequently check in, undergo drug tests and, in some cases, wear GPS ankle monitors.

Court officials in Delaware could not provide statistics on the number of defendants who show up for court cases after being released. But commercial bail bondsman say eliminating bail here would be disastrous. A defendant who makes bail is able to quickly get back to his or her daily routine, bail bondsmen say. And if a defendant doesn’t show up for court, the bail bondsman has a financial incentive to find the defendant without cost to taxpayers, they say.

“We have check-ins; we make sure our clients are working,” said Wilmington bail bondsman Robert Bovell. “That is something the court wouldn’t have the manpower or the time to do. You’d have to start to worry about who is really watching over these individuals.”

Supporters of bail reform say only the most dangerous defendants should be held for trial. Delaware has a unified prison system, which means inmates who cannot post bail are housed in the same prisons as those who are convicted.

Markell and Department of Corrections Commissioner Robert Coupe say releasing low-risk defendants into community supervision is a way to ease prison overcrowding, noting that last year Wilmington’s Howard R. Young Correctional Institution had to house inmates in its gymnasium.

The number of people being held in Delaware prisons while awaiting trial has skyrocketed since the early 1980s. There were 300 held in 1983 – and 1,339 held in 2014.

Currently, about 23 percent of the state’s prisoners are held while cases are pending. The number jumps to 40 percent at the Baylor Women’s Correctional Institution.

Bail reform efforts started in 2011 have contributed to a 3 percent reduction in the total prison population since last year, Markell said. Efforts include determining which defendants in custody on less than $10,000 bail could be safely released.

“I believe our judges and our prosecutors recognize the big-picture criminal justice challenges we face and the need for change,” Markell said. “But it will take time to shift the long-standing practices of defaulting to setting secured or cash bail in too many cases.”

Lawsuits prompt reform

The American bail system is firmly rooted in court systems nationwide, but a reform movement is advocating for an ambitious overhaul. Four states have already gotten rid of the for-profit bail industry, including Kentucky where judges are now limited to the amount of bail they can set for crimes that would likely result only in a probationary sentence. Bail is administered through the court system there.

New Jersey voters last year approved a constitutional amendment that allows judges to deny release to some defendants considered dangerous or a flight risk and makes release the default for all others.

In October, New York City Mayor Bill de Blasio launched “Bail Lab,” a program aimed at testing alternatives to bail and pushing for reform.

Archmere intercepted five passes and recovered two fumbles en route to a 17-2 win against previously undefeated Delaware Military Academy.

In Delaware, legislation is pending that could add to the list of serious felony crimes for which a defendant can be denied bail – a move advocates say can, if done correctly, ensures high-risk defendants are not getting out on low bails. Other legislative proposals could be coming next year.

But, some civil rights lawyers are not leaving bail reform to chance.

Clanton, Alabama, was hit in January with a federal lawsuit challenging money bail as a violation of the Equal Protection Clause of the 14th Amendment. The case drew widespread attention when the U.S. Department of Justice filed a brief saying holding people solely because they are poor is unconstitutional.

Rather than fight, the city agreed to release most misdemeanor defendants without them posting bail.

Alec Karakatsanis – a Harvard Law School graduate and co-founder of Equal Justice Under Law – has since filed eight more class-action suits that have led to similar changes in Missouri, Mississippi and Louisiana.

“We are prepared, of course, to go around the country and sue city after city, county after county, but I prefer not to do that, but these systems are tremendously powerful,” Karakatsanis said during a recent speaking engagement in Delaware.

Similar cases challenging the bail system could easily go to the U.S. Supreme Court, said Gloria J. Browne-Marshall, an associate professor at John Jay College of Criminal Justice in New York City.

“There hasn’t been a case regarding bail, and what excessive bail means, for decades,” she said. “This is a prime time for a case to be brought to the Supreme Court.”

Taken out of circulation

Data from 2010 shows that about 40 percent of those held in Delaware prisons awaiting trial are there for nonviolent felonies, and about 12 percent have a main charge that is a drug offense.

Advocates for bail reform say many of these individuals could be released, and if necessary, monitored by the state’s pretrial services to ensure they return to court. For defendants being held on bail, sometimes the fastest way to get out of prison is often to plead guilty, which puts them at a disadvantage in their cases, advocates say.

“There are real problems with depending as heavily as most states do on money bail,” said Stephanos Bibas, a professor of law and criminology at Penn Law, who will testify at the Access to Justice hearing.

Jonathan Wilson, 44, has seen firsthand – both in his own life and in the lives of men he counsels – the struggles of not being able to afford bail.

He is now a doctoral student at Wilmington University and founder of the Fathership Foundation. He has been arrested over a dozen times, he said, on charges such as robbery and drug offenses. One time more than a decade ago he was arrested in Philadelphia.

“I had a bail that was $1,500,” he said. “I had the money at home, but my mother said, ‘No, I’m not going down there.’ I sat there for three months until I could get somebody to go to my mother’s house to get the money, go down to court and pay the bail.”

Wilson believes detainees who are not dangerous should be released.

“Every day, every hour you are in there, something is going downhill on the outside,” he said. “You are taken out of circulation. If you have to pick up your kids every day at 4, that isn’t going to happen. If you have bills to pay, it isn’t going to happen.”

The price of freedom

Delaware’s bail system is grounded in the state’s Constitution. Only defendants charged with capital murder can be held without bail; all others are left to the judge’s discretion.

Those choices play out every day in Delaware courtrooms. The price of freedom this past week was $410,000 cash bail for a man accused of accidentally shooting of a 6-year-old girl, $30,000 cash bail for a man accused of having a loaded handgun under his hotel room mattress and $27,500 cash bail for a 20-year-old Bear man accused of having 40 grams of marijuana and other drugs. The Bear man is the only one who has been released.

“Bail is not about punishment,” Delaware Chief Magistrate Alan Davis said. “We are prohibited by U.S. Supreme Court decisions from making bail excessive.”

There are four types of bail. Two of the least restrictive options allow a defendant to be released on their promise to come back or to pay only if they do not show up for future court appearances.

Secured bail requires a defendant or someone on their behalf to post either cash or property for the dollar amount of bail. In most cases, a relative pays a bail bondsman a small percent of the bail amount, and the bondsman then pays an insurance company to post the bond. Bondsmen typically charge 10 percent of the bail amount to post the bond.

Cash bail requires a person post only cash, and the bondsman typically charges the defendant 20 to 30 percent of the bond amount.

Bail money is returned to an individual at the conclusion of a case as long as he or she appeared for court. If not, the court can cash in the insurance policy.

85 percent are released

The concept of bail does not exist in any D.C. courtroom or federal courtrooms in Delaware and around the nation.

“If they are not a risk, if they are not charged with a dangerous offense, then they shouldn’t be held, even pending the first court appearance,” said Cliff Keenan, the director of pretrial services in Washington, D.C. “The judges, the prosecutors, the community, by and large, all agree that this is the better way to do business, rather than relying on commercial bail as a condition of release.”

The result is that cases move swiftly once someone is arrested in Washington.

Certain minor offenses, including urinating in public and disorderly conduct, do not require an appearance before a judge. All other defendants are transported to the lockup in the district’s bustling Superior Court building just blocks away from the Washington Monument.

There they meet any time – day or night – with a pretrial services employee who gathers information that will be used by the judge to make a decision on their release. At the same time, a prosecutor reviews the facts of the case to see if the charge will stick.

For those cases prosecutors decide can go forward, the defendant goes before a judge who determines release or detention. About 85 percent of those arrested are released. The D.C. Pretrial Services Agency supervised 13,850 defendants in 2014 – about 4,100 on any given day.

Unlike in Delaware, a prosecutor and defense attorney are present for the initial hearing.

Last week in Washington, an African-American man stood in a white hoodie and sagging jeans to ask for his release. Just hours earlier, he was arrested for possessing cocaine and paraphernalia.

“If I release you, you have to report, or we will have to hold you,” the judge said as he ordered the man to report to pretrial services once a week, and to undergo regular drug tests until the conclusion of his case.

The man nodded, and was whisked aside to have his handcuffs removed.

‘We are not superstars’

Those opposed to changing the bail system say the District of Columbia should not be seen as a model. That is because the district spends about $60 million per year on pretrial services and employs 350 people – an unrealistic expenditure for a state like Delaware that does not have the same level of federal funding.

Keenan said cost savings associated with having less people in prison can be rolled over into pretrial services.

Coupe, who runs Delaware’s prison system that spends $277 million annually, said the state could save money by reducing the overall population. Taxpayers spend $99 per day, or $36,232 annually, to house each inmate.

Nicholas Wachinski, the chief executive officer of Lexington National, an insurance company that underwrites bail bonds, said the D.C. system is costly and does not lead to prison population reductions. He said low-end defendants released are the most likely to skip court appearances.

Bail bondsman are on the front lines of community corrections, Wachinski said.

“Their offices are in the community; they live in the communities they serve. That is why they work so well with the people they bail out. We will lose that for the replacement of a governmental agency taking that over.”

Christina Brigandi of Dover, a bail bondsman at 1st Choice Bail Bonds in Delaware, agrees.

Her phone rings constantly, often with panicked parents calling to get their children who were just arrested out of prison – or to retrieve kids still sitting at police headquarters, before they go into a cell at a state institution.

When she’s not on the phone, Brigandi is driving between courthouses in Georgetown, Dover and Wilmington to meet clients – or searching streets for defendants on the run from the law.

“It’s not like what you see on TV,” she said. “We are not superstars; we are just trying to get people out of jail on bail, and then we follow through to make sure they come back to court. It is costing nobody any money but us.”

Those who want change, though, say the true cost is borne by defendants who must scrape together their life savings to pay a bail bondsman – or who sit in prison awaiting a trial, only to eventually have the charges dropped.

“At this point in 2015, the only people significantly opposed to pretrial reform is the for-profit bail industry,” said Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute in Maryland. “It is a lucrative business, but it can change if the public becomes educated.”

On the cusp of change

Fanno Burdeen said she is confident Delaware is on the cusp of bail reform.

Pretrial services in Delaware are on the rise, but still have a ways to go. In New Castle County, there are 367 defendants being monitored – three times what it was seven years ago.

Statewide, about 523 people are being monitored, putting a strain on the system.

“We are taxing them,” said Judge Davis, who favors the change as long as Delaware’s pretrial services are properly funded. “If we implemented a system where we could use it as it should be used, how it is used in other jurisdictions, we could overwhelm them [pretrial services] in a weekend.”

To help with the burden, the state partnered with the Rick Van Story Resource Center in Wilmington, a mental health and substance abuse recovery facility. About 40 pretrial defendants have been sent there for monitoring since 2013, according to Heather Zwickert, supervisor of the Department of Correction’s New Castle County Pretrial Services Unit.

The center is a place where defendants get assistance in dealing with their criminal case while also receiving help with other aspects of life – be it a hot meal or counseling.

The DOC is looking for even more defendants who could benefit from that type of setting. One pilot program is reviewing non-violent defendants in New Castle County who are in custody on less than $10,000 bail to see if any can be safely released into the community.

“The target audience that we are looking for is individuals whose needs outweigh the risk to the community,” Coupe said. “I see the future of pretrial continuing to grow.”

Meanwhile, the nonprofit Delaware Center for Justice won a two-year federal grant called Smart Pretrial Demonstration Initiative. The initiative, which has brought together prosecutors, public defenders, judges and others in the criminal justice system, is currently gathering and analyzing Delaware data that will then be used to guide the path of pretrial services.

“The challenge that every pretrial system faces is making sure the right people are being detained and that the right people are being released with effective monitoring,” said Kate Parker West, coordinator for Smart Pretrial at the Delaware Center for Justice.

Advocates in Delaware and nationwide say that bail review isn’t just about cost savings, but is about restoring faith in the criminal justice system.

“There is a tremendous sense that the legal system is not there to do justice; it is there to do injustice, to control people, to oppress people,” said Karakatsanis, the civil rights lawyer. “We have a lot of work to do in our communities to make our courts somewhere where justice is done, as opposed to places where trauma, pain and injustice are inflicted.”

Contact Jessica Masulli Reyes at 302-324-2777, jmreyes@delawareonline.com or Twitter @JessicaMasulli.

Efforts in Delaware to reform pretrial detention:

• Pretrial risk assessment – a tool to help judges gauge defendants’ flight risk and likelihood of re-arrest when deciding on release – was implemented statewide in 2013. State officials are working to validate the assessment.

• Another pilot program is reviewing non-violent defendants in New Castle County who are in custody on less than $10,000 bail to see if any can be safely released into the community.

• The nonprofit Delaware Center for Justice won a two-year federal grant called Smart Pretrial Demonstration Initiative. They are spearheading a group of prosecutors, public defenders, judges and others in the criminal justice system to gather data that will then be used to help make decisions about releasing defendants.

• Pretrial services, which provides information about defendants to the judge to use in making risk determinations and supervises defendants who are released, is expanding under the Department of Correction. The number of defendants being monitored in New Castle County is 367 – three times what it was seven years ago.

Hearing schedule

The Access to Justice Commission’s Committee on Fairness in the Criminal Justice System will conduct a series of informational hearings and public forums. They will be held:

• Nov. 13 at the Chase Center on the Riverfront, 815 Justison St. in Wilmington. Experts will focus on bail and pretrial detention from 9:30 to 11:30 a.m.; charging, plea bargaining decisions and sentencing from 12:30 to 2:30 p.m.; and policing strategies that have worked elsewhere from 3 to 5 p.m. Public comment will not be accepted.

• Public comment will be accepted from 6:30 to 8 p.m. at four locations: Dec. 1 at First State Community Action Agency, 308 N. Railroad Avenue in Georgetown; Dec. 2 at Middletown High, 120 Silver Lake Road in Middletown; Dec. 8 at Howard High, 401 E. 12th St. in Wilmington; Dec. 9 at William Henry Middle School, 65 Carver Road in Dover.

Those interested in offering comment at the public forums can preregister atcourts.delaware.gov/supreme/accessform.stm. Same day registration also will be available at each location. Comments will be limited to five minutes.

Written comments can be submitted through Dec. 18.

 

— original article via delawareonline.com