The 4th-Generation of Bail Reform
The 4th-Generation of Bail Reform
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.
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.
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.
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.
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.”
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 (firstname.lastname@example.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.”