Bail reform fails in Baltimore--people in jail awaiting trial increases

Seven years after Maryland tried to reform the cash bail system because of its disproportionate impact on the state’s poorest residents, people who get arrested in Baltimore are being held in jail before trial at a higher rate than before the change, reported the Baltimore Beat.

While the use of cash bail has dropped since the bail reform effort, nearly two-thirds of all initial appearances in Baltimore — the first hearing an arrested person has before a court official — now end in a bail denial, a rate that has surged by about 300% since the state judiciary changed the rules surrounding pretrial release in 2017.

The population at Baltimore’s main pretrial detention center has actually risen since 2017, even as arrests have declined during the same period. People who are held in jail before trial can wait months or longer before their case concludes, even though they are presumed innocent and criminal cases in Baltimore often end without a conviction.

The biggest shift since the rule change has come from court officers denying bail entirely, according to data provided by the state judiciary and analyzed by Baltimore Beat and The Garrison Project.

The data shows: 

·         Since the bail reform rule change in 2017, the use of cash bail at initial appearances has fallen dramatically in Baltimore, from about 40% before the 2017 effort to under 5% in the first half of 2023, the most recent data provided by the state judiciary.

·         Baltimore’s overall release rate — the proportion of people freed on unsecured bond or on their own recognizance at their initial appearances — rose at first after bail reform, but then fell back below pre-reform levels.

·         In 2016, court officers in Baltimore held people without bail at their initial appearances less than 15% of the time, but bail denials quickly spiked after the rule change and have hovered around 60% since 2020.

These are not brief stints in jail. More than 60% of defendants who have an initial appearance are still in custody five days later.

The 2017 bail reform effort was designed to reduce the crushing, unequal costs of cash bail and stop judges from holding people in jail pretrial simply because they could not afford to pay — a practice that was likely unconstitutional, the Maryland Attorney General’s Office said in 2016.

Yet the population at Baltimore’s main pretrial detention center has risen from under 700 people per day on average in 2017 to more than 900 in 2023. The facility’s health care system is under intense scrutiny, and at least four people have died in pretrial custody this year, including a man who was held on $3,500 cash bail after being accused of stealing snacks from a vending machine.

Christopher Dews, a lobbyist who represents Out for Justice, a nonprofit that supports formerly incarcerated people, said the difference after the 2017 rule change was clear when he worked on the Job Opportunity Task Force’s bail fund in Baltimore. The number of people eligible to be bailed out of jail dwindled and then reached zero, he said.

The result has frustrated reform advocates who considered the rule change a victory but have since watched it backfire.

“It is quite painful, the reality that whenever we have a massive policy win for equitable criminal justice reforms, it does seem as if the state finds non-legislative, non-policy ways to thwart those successes,” Dews said. “As advocates, we prepare to defend our wins, but you can only defend wins so much from the state that has to implement those same wins.”

The pretrial system became more black-and-white after the rule change, added Nicole Belle, who was a case manager for the Job Opportunity Task Force’s bail fund from 2021 until early 2023. People facing charges were either released or held without bail.

“There was no in between,” Belle said.  

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Creators: Diddy Sits in Jail Pending Trial

Matthew T. Mangino
Creators Syndicate
September 30, 2024

Why is Sean "Diddy" Combs in jail? He hasn't been convicted of a crime. He was charged by the U.S. Attorney for the Southern District of New York with conspiracy to commit racketeering, conspiracy to commit sex trafficking and transportation to engage in prostitution. How about the presumption of innocence?

Pretrial detention in federal court is much different than in the various states. In state court, typically after a felony arrest, an arraignment hearing is scheduled. At the hearing, a judge sets a monetary amount for bond. The accused can post a cash bond or use a surety to post bail. The accused is then free pending trial. There is no such system in federal cases.

In federal court, pursuant to the Bail Reform Act of 1984, an accused has a presumption of release pending trial. Federal prosecutors must overcome that presumption. The presumption is overcome by proving that an accused is a flight risk — the fear that an accused will run before trial.

This is where it gets dicey for Combs. The court will consider a person's access to funds and ease of travel. Someone like Combs, with substantial wealth, is more likely to be detained because of access to quick cash, making it easier to flee.

Another problem for Combs was his alleged contact with witnesses prior to the indictment. Federal prosecutors can present evidence that the accused poses a danger to the community, such as a history of violence or threats to witnesses.

If a judge finds that the accused is either a risk to flee or dangerous, she may order the accused remain in custody until trial.

According to The New York Times, during Combs' detention hearing, prosecutors presented evidence that Combs had committed violence against women, had access to weapons, had a history of anger management and substance abuse, and had contacted some of the victims, and witnesses, who reported being afraid of him.

A federal magistrate and a federal district court judge have decided to detain Combs pending trial.

Combs is a victim of his own wealth and notoriety.

In a state cash bail system, a judge sets a sum based on factors like the seriousness of the offense and the accused's criminal record. If the accused doesn't have the money, she sits in jail until trial. Many of those charged with a crime in state court remain in jail simply because of their inability to post bond.

In contrast, federal law requires the judge to conduct an extensive hearing and consider a variety of factors in deciding whether to release a defendant before trial. If released, the accused pays nothing up front to be released — only a promise to pay a certain sum of money in the future if the defendant fails to appear for trial. The advantage of the federal system over the state cash bail system is that a defendant's freedom is not determined by their ability to pay.

In March, federal Homeland Security agents raided Combs' residences in Los Angeles and Miami as part of an investigation into alleged criminal activity.

According to news accounts, a recent indictment against Combs alleges arson, kidnapping, forced labor, bribery, obstruction of justice, prostitution and sex trafficking, including forcing victims into engaging in recorded sexual activity referred to as "Freak Offs."

For Combs, money is the problem. Not that he doesn't have enough, but that he has too much. Theoretically, it would be easy for someone with Combs' resources to be released, call a friend with some connections, charter a private jet — without a flight plan — and flee the country.

Ironically, a federal statute created to eliminate wealth as a factor for release is keeping Combs in jail.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino

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Texas continues to use a cash bail system-penalizing poor people

Like most states, Texas uses a cash bail system that lets defendants pay to get released from jail while they wait for ​​adjudication. But the price of bail is often an insurmountable hurdle, reported the Texas Tribune.

Civil rights groups and inmates have unsuccessfully challenged Texas’ use of a cash bail system for years. Lawsuits targeting Dallas and Harris county jails alleged the practice was unconstitutional because it discriminates against poorer defendants. A federal appeals court ruled against the Dallas plaintiffs and the Supreme Court declined to take the case. 

In 2021, Texas lawmakers changed the state’s bail system, but didn’t forbid a cash bail system. Instead, they required all defendants accused of violent crimes to pay cash for release from jail before their trials. Critics said requiring cash to get out of jail would continue to penalize low-income people and benefit the bail bonds industry.

About three in every four Texans in county jails are awaiting the resolution of their cases, according to data from the Texas Commission on Jail Standards, the state agency that oversees local jails. That number has surpassed pre-pandemic levels and is 14% higher than in January 2017.

For women, the wait can be harder than for men. County jails, meant for short stays, commonly lack resources women need — like pregnancy care and mental health treatment. Women in county jails are also more likely to have mental health needs. And many are mothers separated from their children.

Angel Collier worked at Buc-ee’s, but in 2014 became a stay-at-home mom for several years before breaking up with her child’s father. At the time of her 2020 arrest, Collier was living with her father while she was a full-time student pursuing an online psychology degree from Houston Christian University.

Following her arrest, Collier’s combined bond for the two misdemeanor charges was set at $8,000. When she couldn’t afford that, a friend loaned her over $700 to pay a bonds company so she could get out of jail. But two years later, while still awaiting her trial, she missed a required court hearing because she was receiving emergency care for pregnancy complications. A warrant was issued for her arrest in Walker County.

In June 2022, officers from Madison County were sent to her home in Midway for a welfare check because someone reported she was having a miscarriage. When Collier came outside, she told police she was OK, but that she may go to the doctor the next day, according to video obtained by KFF Health News. Because of the Walker County warrants, police arrested her.

Collier said she could not afford to pay thousands of dollars to bail out. Stuck in Walker County jail again, she says she experienced a miscarriage and received little medical attention while she waited a day for another friend to loan her money to pay a bonds company for her release.

Collier later filed a formal complaint with The Texas Commission on Jail Standards about her miscarriage. In a September 2022 letter, the agency told Collier that Walker County Jail had not violated minimum jail standards. According to the commission, records from Walker County Jail show that Collier only submitted one medical request and did not advise jail staff of any other medical issues. Collier claims she asked for help multiple times.

“We haven’t yet gone far enough to meet the needs of women who are in jail at the county level,” said Alycia Welch, associate director of the Prison and Jail Innovation Lab at The University of Texas at Austin, a research center dedicated to incarceration in Texas.

Texas law requires the Texas Commission on Jail Standards to collect and report data on incarcerated women. But the Commission cannot provide the total number of women behind bars and waiting for their cases to be resolved in Texas county jails right now — or any time in the last two years.

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Creators: The 'Poverty Penalty': No Cash, No Freedom

Matthew T. Mangino
Creators
March 18, 2024

A fundamental tenet of Anglo-American jurisprudence, dating back to the Magna Carta, is that all those accused of a crime are presumed innocent until proven guilty. Today, about four out of five people sitting in local county jails and municipal lockups have not been convicted of the crime that brought about their detention.

Every day across the country, thousands of people are locked up because they don't have money. The idea of "debtors' prison" has long been repugnant. However, the concept of "pay or go to jail" is still around. Whether it's getting locked up for not paying fines or penalties after a conviction, or not having the wherewithal to post bail pending trial — there are still a lot of poor people in jail.

In most jurisdictions, the difference between being charged with a crime and walking the street pending trial, or sitting in jail awaiting trial, comes down to cash. Those who have it stay out of jail; those who don't, stay in jail. Those unfortunate people without money for bail are at risk of losing their jobs, their homes and their families.

Every year, about 11 million people funnel through local municipal and county jails. According to the Prison Policy Initiative, between 1970 and 2017, the number of people incarcerated in the nation's 3,000-plus local jails ballooned — from 150,000 to about 720,000 per day.

The millions of people who go to jail each year are there, generally, for brief periods of time. Most are released in days or hours after their arrest, while others are held for months or even years — often because they can't afford to make bail, are unable to get a speedy trial, or can't gain timely access to a public defender.

Defendants accused of particularly serious violent crimes or who pose a credible threat to public safety may be detained in jail while awaiting trial. However, most defendants are entitled to pretrial release. Judges may impose conditions on a defendant's release, such as electronic monitoring or supervision through a pretrial services agency, but they are entitled to bail if they can afford it.

Correcting the bail crisis is not out of reach. This isn't about being tough on crime. It's about being fair. For some, even a nominal bond is out of reach. When an accused has no money, $1,500 might as well be $150,000.

Cash bail was historically intended to provide a financial incentive for defendants to show up at required court dates, but reforms adopted in the 1970s and 1980s allowed judges to also consider potential risks to public safety when making bail decisions. Cash bail can, under the right circumstances, be an appropriate tool for ensuring defendants cooperate throughout the pretrial period.

However, in most instances, cash bail creates a wealth-based, two-tiered system of pretrial detention. Those who can't afford bail suffer a "poverty penalty." No system of justice can endure when a person's wealth, or lack of it, can determine their freedom. Mariam Krinsky, executive director of the nonprofit Fair and Just Prosecution, said in 2019, "Common sense dictates that people should not be held in jail simply because they cannot afford a monetary payment." Yet the widespread use of cash bail continues.

Keeping an accused in jail for an extended period of time without trial creates other grievous problems in the criminal justice system. For instance, some inmates being detained pretrial, without the resources to post bail, see a guilty plea as their only path to freedom. Some defendants sitting in jail will take a plea offer, even if they're innocent, just to get out of jail. What could be worse than being locked up because you can't afford bail?

Pleading guilty to a crime you didn't commit to regain your freedom.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Cash bail is a sanction for poverty

On any given day, approximately 514,000 people are held in local jails across the United States. Though defendants are presumed innocent until proven guilty, more than 80% of the jail population are awaiting trial and have yet to be convicted of a crime, reported the Reason Foundation. Defendants accused of particularly serious violent crimes or who pose a credible threat to public safety may be detained in jail while awaiting trial. However, most defendants are entitled to pretrial release. Judges may impose conditions on a defendant’s release, such as electronic monitoring or supervision through a pretrial services agency.

Monetary release conditions, commonly referred to as “cash bail” or “money bail,” are among the most common types of pretrial release conditions in the United States. Cash bail allows defendants to secure their release by depositing a specified amount of money with the court as collateral, providing a financial incentive for compliance during the pretrial phase. If a defendant appears as required through the disposition of their case, the bail amount is returned to them. If a defendant fails to appear in court as required, the bail amount is forfeited, and the defendant may face additional criminal charges or penalties.

Cash bail was historically intended to provide a financial incentive for defendants to show up at required court dates, but reforms adopted in the 1970s and 1980s allow judges to also consider potential risks to public safety when making bail decisions. Under the right circumstances, cash bail is an appropriate tool for ensuring defendants cooperate throughout the pretrial period. However, many defendants cannot afford the cost of bail and are consequently detained for no reason other than their inability to pay.

Recent research suggests that bail decisions can result in defendants losing their jobs, coerce defendants into accepting plea bargains, and increase the probability that defendants are convicted. Given the potential negative consequences of pretrial detention resulting from an inability to afford cash bail, reform advocates have suggested limiting the use of monetary release conditions. Reforms to pretrial policy require policymakers to balance several competing interests, many of which are difficult to quantify. For example, it is not possible to quantify the normative value of the presumption of innocence or American’s Constitutional right to reasonable bail. However, research evidence can shed some light on the efficacy of cash bail for ensuring compliance during the pretrial period.

With some caveats, the studies included in this review collectively suggest that monetary release conditions like cash bail do not consistently improve court attendance and may not result in net crime reduction. Other factors, including indigence, drug use disorders, and criminal history, are generally stronger predictors of court attendance than the imposition of monetary release conditions. Conservatively, we can conclude that the United States relies too heavily on monetary release conditions. The bulk of available evidence suggests that curtailing the use of monetary release conditions among low-risk defendants would not result in dramatic drops in court attendance or increased risk of reoffending. There is even some evidence that pretrial reforms that reduce detention of low-risk, bond-eligible defendants may actually improve public safety. Additional research is needed to evaluate more ambitious reform proposals.

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Tennessee legislators seek constitutional amendment to expand detention without bail

A bipartisan group of Tennessee state legislators unveiled a proposed state constitutional amendment  to grant judges more discretion to detain individuals without bail before trial for specific violent criminal charges, reported Jurist.

Tennessee House Speaker Cameron Sexton (R-District 25) made the announcement at Memphis City Hall, flanked by Memphis’ Mayor Paul Young (D), Senate Majority Leader Jack Johnson (R-District 27), a number of state legislators representing Memphis and Shelby County, local law enforcement officials and Shelby County District Attorney Steve Mulroy (D).

Sexton stated:

There’s a lot of cases all across our state that you’ve seen, not just in Memphis, but all across our state, of someone who is out on bail who is a violent criminal who committed another violent crime shortly thereafter that took another victim.

Currently, the Tennessee Constitution permits judges to deny bail only for charges that carry the possibility of the death penalty, typically limited to first-degree murder cases.

Rep. Antonio Parkinson (D-Memphis) supported the announcement saying:

A mother who has lost a son to violent crime, she does not care if you’re Democrat or Republican, … When I speak to the mothers or the parents of a constituent in Cordova whose daughter might have gone through a violent rape or a sexual assault, they don’t care if you’re Democrat or Republican.

Despite the bipartisan support, the proposal faces criticism from some advocates who argue that it won’t effectively address the crime issues in Memphis and the broader state. Rep. Justin Pearson (D-District 81), one of the two state legislators expelled last year due to a House floor protest advocating for gun control and later reinstated, dismissed the proposed amendment as a “useless amendment related to bail that doesn’t address the devastation of violence in our communities.” He urged Republicans to repeal permitless carry laws in Tennessee and establish a fully funded violence prevention office.

Stand for Children Tennessee, a group that advocates for issues such as racial justice, echoed similar views saying:

This is not ‘bail reform’ — it’s an extremist attack on constitutional rights and fundamental American values that are supposed to be based on being innocent until proven guilty, … It will not fix any problem that exists, and it will not make us safer.

For the amendment to become part of the state constitution, it must successfully pass both the Tennessee State House and Senate, during one two-year General Assembly, and then pass by at least two-thirds of the vote in the second round in both chambers. The amendment would then go on a general election ballot.

The Eighth Amendment of the US Constitution bans excessive bail or fines. However, the US Supreme Court has ruled that denial of bail is constitutional. According to a 2022 policy brief from the National Conference of State Legislatures (NCSL), over 20 states have amended their constitutional bail provisions, enabling expanded pretrial detention through a variety of ways.

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Illinois Supreme Court affirms law eliminating cash bail

The Illinois Supreme Court upheld a measure eliminating cash bail in the state, finding that Democratic legislators acted properly when they passed the law, which will transform the Illinois criminal justice system and limit judges’ ability to hold defendants in jail before trial, reported The New York Times.

The Illinois law, which went beyond similar bail overhauls in other states, was part of a national push to reduce jail populations and end a system in which wealth can determine whether a defendant returns home to await trial. But it infuriated many county prosecutors and sheriffs, who asserted that the law was passed improperly and made the state less safe.

In its ruling on Tuesday, the Supreme Court said cash bail would end in Illinois on Sept. 18.

Cash bail has been widely used for decades. Rather than sit in jail waiting for a trial that may not begin for months, a defendant is allowed to deposit money with the court and remain free. But if they fail to show up when they are supposed to, the defendant risks losing that money.

Civil rights groups and politicians, many of them Democrats, have long called for limiting or abolishing that system, and for allowing more defendants to be released without having to put up money. Critics say the cash bail system is unfair to poor defendants, who risk losing jobs or homes if they cannot afford to post bail.

“Someone’s experience with the criminal justice system should not vary based on their income level,” Attorney General Kwame Raoul, a Democrat, said in a statement praising the 5-to-2 decision.

But law enforcement groups have spoken in ominous terms about what the change would mean for public safety. In a court brief, lawyers for the union representing rank-and-file Chicago police officers said the law “sets forth a recipe for increases in crime, recidivism, dysfunction in the criminal prosecution system, and danger to police officers and the communities they serve.”

New Jersey and New Mexico have vastly reduced the use of cash bail but have not ended it completely. New York has eliminated it for certain types of offenses but not others. Those moves also led to fierce opposition, and some second-guessing.

The Illinois law passed with broad Democratic support and was signed by Gov. J.B. Pritzker, part of a shift to the political left since Democrats reclaimed full control of state government in the 2018 election.

Republicans voiced their opposition to the cash bail law during last year’s campaigns, but Mr. Pritzker won re-election by a wide margin and Democrats kept legislative majorities.

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John Jay College: NYC bail reform laws reduced recidivism

Controversial new state bail laws that some politicians say lead to offenders getting released and then rearrested actually had the opposite overall effect, according to a new study of criminal justice data, reported by the Gothamist a New York City non-profit newsroom.

The study, from John Jay College’s Data Collaborative for Justice, showed that the 2020 bail reform laws eliminating judges’ ability to impose bail for low-level crimes actually reduced the likelihood that someone would get arrested again.

The one exception was for bail-eligible people who were released following recent violent felony arrests. The rate of rearrests for that cohort of offenders increased slightly.

“Fundamentally, we found that eliminating bail for most misdemeanors and nonviolent felonies reduced recidivism in New York City, while there was no clear effect in either direction for cases remaining bail eligible,” said Michael Rempel, director of John Jay College’s Data Collaborative for Justice, in a statement.

The study did not delve into the reasons behind the relative lack of recidivism among those who were released without having to pay bail. But experts have said that even temporary incarceration can lead to termination from jobs, family disruption and housing loss, which can incentivize further criminal activity.

The purpose of the 2020 reform laws was to allow people charged with most misdemeanors and nonviolent felonies to be released while their cases played out in court. That meant they didn’t have to choose between paying bail and going to the dangerous Rikers Island jails. Instead, judges had to release people under other conditions like supervised release, which involves nonprofit agencies in the community doing monitoring and support.

The reforms were designed to reduce incarceration and stop putting people in jail just because they could not afford to post bail. But since the laws went into effect, politicians who oppose bail reform — such as Democratic Mayor Eric Adams — and conservative outlets like The New York Post, have argued that the laws went too far and led to violent criminals roaming free on city streets.

"We have a recidivism problem in New York and far too many people, there's about 2,000 people who are repeatedly catch, release, repeat in crimes," Adams said earlier this month. "If we don't take them off our streets, they're going to continue to prey on innocent people."

This new study found that the two-year rearrest rate for those released due to bail reform was 44%, compared to 50% for those with similar charges, criminal histories and demographics who were held in jail in the period before the reform.

It also took longer for those released as a result of bail reform to get rearrested than those forced to do a stint in jail after being charged.

Since the bail reform measures passed in 2019 and 2020, the new laws’ effect on crime has been perhaps the most debated topic in New York politics. It was a central focus of last year’s state elections, with Republicans and conservative Democrats alike claiming it led to spikes in crime, especially shootings and burglaries, because people were released without bail and went on to commit illegal acts. But so far data to prove that assertion has been limited, as have analyses countering the argument.

Tuesday's report tracked alleged offenders over a longer period than prior studies — including the time after cases were disposed of — and compared rearrests of those released pretrial due to bail reform and other statistically similar people who were held in jail.

“Our goal with this study was to substantially upgrade the credibility of information known to New Yorkers about bail reform and recidivism,” said Rempel in a statement.

Bail reform remains a hotly debated topic. Gov. Kathy Hochul is now seeking to eliminate the mandate that judges impose the “least restrictive condition” necessary on those charged with crimes still eligible for the imposition of bail, like violent felonies. The change would give more discretion to judges to allow them to impose higher bail amounts in order to keep more people locked up pretrial if they can’t afford to pay. But opponents say the proposal is unconstitutional.

The bail reform laws were initially passed in 2019 and modified in 2020 and 2022. The latest modifications went into effect in May and were not part of the John Jay study.

Offenses that are still not eligible for mandatory release are almost all violent felonies, sex offenses and certain domestic violence cases. Judges can order holding certain repeat offenders and those deemed a flight risk.

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Ohio passes measure requiring judges to "consider public safety" when setting bail

One of two statewide issues Ohio voted on in the general election on Nov. 8, has passed by a comfortable margin. It requires judges to "consider public safety" along with other factors when setting bail, reported WKYC-TV in Cleveland, Ohio.

Opponents to Issue 1argued that the issue's language is designed to distract voters from what they see as the greater concern of bail reform.

"People with money will be able to get out, people without money will stay incarcerated," added Whitaker. "And it doesn't address really who is a risk to the public."

So, what is bail? Also called bond, it's an amount of money given to the court for the temporary release of a defendant to ensure that the defendant returns to court.

"People that we consider to be a danger to the community -- they shouldn't get bail, said Whitaker. "The courts now have that ability to keep them in custody, based on that concern, she said.

The campaign for Issue 1 began following a 4-3 Ohio Supreme Court ruling in January. After a $1.5-million bond was set for a murder suspect, the court ruled that the high bail was unconstitutional, writing, "A court may not impose excessive bail for the purpose of keeping an accused in jail."

"It was not common sense," declared Justice Pat Fischer before a small crowd of supporters of Issue 1.

Fischer and the other dissenting Republican justices joined a statewide bus tour to campaign for Issue 1, making a stop at the Cleveland Police Patrolman's Association union hall last Friday.

"For 200 years, judges could consider public safety when setting bond, said Fischer. "And all of a sudden, four members of the court that I'm on said no -- Where'd that come from?"

Justice Pat DeWine, son of Governor Mike DeWine, said it's not that easy for judges to deny bail, even if they believe public safety is at risk.

"Only for certain felonies, with certain standards of proof can you hold someone without bail," said DeWine. "And that's appropriate in some situations, but there's other situations where judges want to set a higher bail, and judges in Ohio should have that flexibility." 

While Issue 1 is a constitutional amendment in the name of public safety, it brought the battle over the intent and purpose of bail to the ballot box.

"We have a way to protect our community. and a monetary bond is not the way to do it," said Whitaker.

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New York's bail reform law a success--not contributing to increase in crime

New York nonprofit The Legal Aid Society (LAS)  reported that data from the Department of Criminal Justice Services (DCJS) shows the successes of New York’s 2019 bail reform law, according to Jurist.

Under the 2019 law, judges must release those charged with misdemeanors or most nonviolent felonies on their own recognizance or under “non-monetary conditions.” However, for all violent felonies and some nonviolent felonies, like sex offenses, judges can still set monetary bail. DCJS data shows that 15 percent of people failed to return for trial in 2019; in 2o21, the figure decreased to 9 percent. For those released on their own recognizance, re-arrest rates decreased from 18 percent to 16 percent by 2021.

In a statement, Supervising Attorney of the LAS Decarceration Project Arielle Reid said the “numbers confirm what we’ve known all along: bail reform has decreased jail populations, kept communities intact and furthered public safety. Any claim to the contrary doesn’t square with reality, and is merely baseless fear mongering.” According to Reid, LAS and other organizations will pursue further reforms in the state legislature’s next session.

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Politics behind undoing of bail reform in Ohio

Less than two years after Ohio amended Criminal Rule 46 in a bipartisan process to reduce the use of cash bail so those without means don’t unfairly stew in jail awaiting trial, the GOP bench in favor of bail reform seems to have cleared, reported the Cleveland Plain-Dealer.

Instead, we’re seeing a lot of grandstanding and misinformation in a misguided effort to get an Ohio constitutional amendment on the Nov. 8 ballot to widen use of cash bail. Never mind that such an amendment is being oversold. It cannot undo either Crim. R. 46 requirements or the U.S. constitutional bar against excessive bail.

Simply put, House Joint Resolution 2, sponsored by state Reps. Jeff LaRe of Fairfield County near Columbus and D.J. Swearingen of Huron, and Senate Joint Resolution 5, sponsored by state Sen. Theresa Gavarone, also of Huron, are little more than a confused mass of hot air sitting atop a mound of inaccurate assertions that public safety can’t be considered in setting bail.

Safety can be considered -- if the decision is that someone is too dangerous to be let out and must be held in jail prior to trial. That decision in turn triggers a pretrial detention hearing so the suspect and his or her attorney can make their case for bail, before being held without it.

As legal expert after legal expert has patiently explained to House and Senate committees during hearings on HJR 2 and SJR 5, unaffordable bail imposed without such a hearing is by definition excessive and, as such, contrary not just to Ohio law but also the U.S. Constitution’s Eighth Amendment, which explicitly bars “excessive bail.”

At the same time, Ohio law already provides for pretrial detention hearings to protect the public’s safety when required -- without need of a constitutional amendment.

Yet, when the time came Thursday to vote on HJR 2 -- and a related bill, House Bill 607, also sponsored by LaRe and Swearingen -- the result was predictable. Party-line 7-2 votes in the House Criminal Justice Committee to send the resolution and bill to the House floor.

Voters should be surprised, however, that lawmakers seem to be moving like lightning on this legislation while proceeding snaillike on critical 2022 redistricting decisions.

The reason: Urging folks to the polls Nov. 8 to amend the Ohio Constitution supposedly to make safety a requirement of bail decisions may, to some at the Statehouse, seem like a surefire way to turn out law-and-order voters for critical mid-term elections.

Too bad that what the constitutional amendment (and related legislation) really seeks to do is to distort bail reform and challenge Ohio Supreme Court precedent by making excessive cash bail easier to achieve. And, in the process, with three Supreme Court positions, including chief justice, on the Nov. 8 ballot, maybe change the composition of the court.

A key focus of this parade of misinformation is the Ohio Supreme Court’s 4-3 January ruling in Dubose v. McGuffey, in which the majority upheld an appellate court ruling that a trial court’s decision to impose $1.5 million bail against an accused Hamilton County murderer, Justin Dubose, without a pretrial detention hearing, amounted to excessive bail. The appellate court reduced Dubose’s bail to $500,000, which the Supreme Court majority also upheld, noting that, under Crim. R. 46, once a determination is made to set bail and not hold a suspect prior to trial for public safety reasons, it becomes a mostly financial exercise to set bail sufficient so that the suspect will appear for trial -- while other non-bail means can be used, such as GPS monitoring and home detention, to restrict the defendant’s movements, if needed.

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Is bail reform increasing crime? Not likely

John L. Micek writes in the Pennsylvania Capital-Star:

Rising crime rates nationwide, including here in Pennsylvania, are helping to fuel arguments that reforming cash bail, which is widely recognized as needlessly punitive, will just make a bad problem worse.

In New York, Gov. Kathy Hochul, a Democrat, is “privately pushing” lawmakers to revisit the Empire State’s bail reform law in response to a spike in gun violence during the pandemic, the New York Times reported last month.

But according to a new analysis by The Appeal, there’s currently not enough evidence to support a solid conclusion one way or another, and arguments that bail reforms are helping to fuel rising crime rates mostly amount to demagoguing.

And “focusing on spurious claims about bail reform and crime rates, however, ignores the proven harms of jailing nearly 5 million people each year before any determination of guilt,” the analysis reads.

And here in Pennsylvania, meanwhile, where reformers have spent years pushing for change, there’s some pretty compelling evidence showing that

With reform laws scattered across states and with no hard-and-fast rules for data collection, The Appeal notes that most reform studies have focused on results tied to specific laws, such as the percentage of people who are rearrested while they’re on pretrial release.

But “most research has found that reducing the use of cash bail had little to no effect on the percentage of people who are rearrested while on pretrial release. Some studies have found that jailing people before trial may even increase their likelihood of rearrest in the future,” according to The Appeal.

The Appeal’s analysis acknowledged the arguments of critics who have pointed out that, with more people winning release before trial, crime could increase even if pretrial arrest rates remained unchanged.

“For instance, one study in Cook County found that the number of people on pretrial release rearrested for new crimes rose by 12 percent during the first 15 months of bail reform, even though the percentage who were rearrested decreased slightly,” according to The Appeal.

However, that argument “ignores the fact that the vast majority of crimes are not committed by people on pretrial release,” The Appeal’s analysis continued.

“The Cook County study looking at the first 15 months of bail reform documented about 4,000 arrests of people on pretrial release—just over 4 percent of the nearly 90,000 total arrests the Chicago Police Department reported making in that period,” The Appeal concluded. “Data from other jurisdictions shows a similar trend: A report last month by the New York City Comptroller found that only 5 percent of people arrested were on pretrial release.” 

What also is abundantly clear is the wildly uneven imposition of cash bail, and the economically disastrous effect it can have on the accused and their families.

A report released earlier this year by the American Civil Liberties Union of Pennsylvania took an in-depth look at the use of cash bail in the Keystone State, finding that local magisterial district justices “routinely” set bail that people can’t afford, triggering a “cascade of harmful consequences,” that includes increasing the possibility of someone’s future arrest.

Among its top findings:

• “Cash bail was the most common type of bail set across Pennsylvania, and set nearly twice as often as release on recognizance (ROR), the least restrictive type of bail.” And of the people assigned cash bail, “more than half … did not post it and remained incarcerated.
• “Some counties rarely assign release on recognizance,” and “bail practices varied widely even among the magisterial district justices who serve in the same county,” and
• “[Magisterial district justices impose cash bail more frequently and in higher amounts for Black people].”

To read more CLICK HERE

ACLU: Pennsylvania bail system in need of reform

Broken Rules: How Pennsylvania Courts Use Cash Bail to Incarcerate People Before Trial is a new research report published by the American Civil Liberties Union of Pennsylvania. Documenting statewide bail practices based on data from 2016 and 2017, the report finds that unaffordable cash bail is a statewide crisis. In counties across Pennsylvania, magisterial district judges routinely set bail that people cannot afford. The report provides four recommendations that Pennsylvania’s courts can and must take on the path to reform.

      1. Magisterial district judges must follow the law;
      2. Resident judges must exercise supervisory authority over the magisterial district judges whom they oversee;  
     3. Thee Administrative Office of Pennsylvania Courts must promote transparency by analyzing bail data on a regular basis;
   4. Courts and jails must work together to install safeguards that guarantee no person is incarcerated only because they are unable to pay bail.

To read the Report CLICK HERE

 

     

 

Thousands of Pennsylvanians are locked up because they can't afford bail

Andrea Cipriano wrote recently in The Crime Report:

For years, the American Civil Liberties Union of Pennsylvania (ACLU-PA) has been working on challenging the misuse of cash bail in the state’s 67 counties, but despite a number of concerns raised over the years, noting disparities in Philadelphia and Pittsburgh, little has changed. 

Now, a new report shows that judges assigning cash bail in violation of the rules is not an issue confined to Pittsburgh or Philadelphia.  

“It’s a statewide crisis,” the ACLU-PA charges, adding that regardless of whether or not a county is red or blue, urban or rural, cash bail practices are incarcerating droves of people. 

The ACLU of Pennsylvania obtained the data used in this report from the Administrative Office of Pennsylvania Courts (AOPC). The dataset covers the two-year period from 2016 to 2017, and consists of 383,317 cases. 

Working with a team of data scientists, the ACLU researchers looked over the information, finding that in all 67 counties, magisterial district judges (known as MDJs, or magistrates) “routinely set unaffordable cash bail for people awaiting their day in court.” 

Put in other words, this means that, “at any moment, thousands of Pennsylvanians are locked up in county jails simply because they could not afford to pay bail.” 

“This isn’t just unethical. It’s also in violation of the state Constitution,” Jessica Li, a criminal justice investigator, and advocacy and policy member of the ACLU-PA, writes regarding the report. 

Bail in Principle versus Practice

“In principle, and by law, bail is a mechanism for pretrial release,” Li explains. “But, in practice, magistrates use cash bail to jail people before trial.” 

According to the data analyzed for the report, the researchers found that magistrates routinely set bail at amounts that are too high for people to afford. And, across the state, more than half of those assigned cash bail were unable to pay — resulting in their incarceration. 

Cash bail was also the most common type of bail set in Pennsylvania, despite the fact that in practice, magistrates have other options that have been shown to be more effective than cash bail. Setting non-monetary bail, release on recognizance, or sending court date reminders are all options at their disposal, but the most devastating choice is often chosen. 

And, once thrown into the court system, the ACLU-PA researchers found that not everyone had access to the help they needed. 

Throughout most of Pennsylvania, the ACLU chapter explains, the majority of people appear at bail hearings without a lawyer to advocate on their behalf. Without understanding the system or knowing what to say in front of a judge, many people are left to fend for themselves 

The pretrial process also dictates that the defendant must post the amount of bail set in order to be released — and if they’re unable to pay, they remain incarcerated until their case is resolved, which happens in the majority of cases. 

Across the state, the ACLU researchers found that more than half of people assigned cash bail did not post it, as the average set cash bail amount of $38,433. Put in another perspective, the bail amount posted is more than half the average household income for the commonwealth. 

For people living in poverty, who might be homeless or experiencing precipitous unemployment, being forced to pay even a few hundred dollars ensures incarceration

“If the system were functioning as our constitution envisions, every person assigned money bail should be able to post it,” the report explains. “Yet as our analysis reveals, cash bail puts people in cages—rather than freeing them before trial.”

Clear Racial Disparities

The researchers also found that magistrates imposed cash bail more frequently and in higher amounts for Black people, uncovering another side of the cash bail system that disproportionately impacts people of color. 

Among Black people accused of a crime, 55.2 percent are assigned cash bail. Conversely, among white people accused of a crime, only 38.5 percent are assigned cash bail. 

Beyond assigning bail, the researchers also found that Black defendants are ordered to pay higher amounts of bail than their white counterparts — on average, $12,866 more.

This is a pattern seen in all 67 counties, the researchers uncovered. 

See Also: How Philadelphia’s ‘Bail Advocates’ Reduced Pretrial Racial Disparities

Recommendations for Reform

The ACLU-PA researchers first note that bail is meant to be a mechanism for release, but in reality, it’s used to detain people pretrial. 

“The problem lies not with the law, but with the elected officials who set bail and often failed to follow the law,” the researchers add, noting that their first recommendation is that magisterial district judges must follow the law and the guidance for pretrial detention, noting that they should encourage release on recognizance, and guarantee that monetary bail, if set, is affordable. 

Presiding judges must also exercise supervisory authority over magisterial district judges whom they oversee, as a way to keep all aspects of the system in line. 

Moreover, the researchers recommend that the Administrative Office of Pennsylvania Courts must “promote transparency by analyzing bail data on a regular basis.” Much of this recommendation also relates to the fact that raw data in understanding bail practices is largely inaccessible to the public. 

Lastly, the ACLU-PA researchers suggest that courts and jails must work together to install safeguards that guarantee no person is incarcerated only because they are unable to pay bail. 

Additional Reading: Stop Blaming Crime Increase on Bail Reform: NC Prosecutor

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New Jersey bail reform measure dramatically reduced minor offenders awaiting trial

 In 2014, New Jersey voters backed a constitutional amendment to allow judges to order certain criminal suspects be detained without bail and pushed the courts away from holding minor offenders awaiting trial, according to the New Jersey Monitor.

Since that measure went into effect in 2017, the number of individuals imprisoned on bail of $2,500 or less while awaiting trial fell to just 14 last year, the New Jersey Judiciary announced. A study conducted in 2012 put the number at more than 1,500, fully 12% of the state’s prison population.

“Based on what the hands-on experience is with the courts system, it’s proven out that we got it right,” said Assemblyman John Burzichelli (D-Gloucester), a prime sponsor of the amendment’s enabling legislation, which allowed the courts to set non-monetary release conditions.

The number of pretrial inmates held on bail of $2,500 or less has declined each year since the new rules went into effect. Replicated studies found such individuals accounted for 4.6% of New Jersey’s prison population in 2018, and 2.4% in 2019.

“If the point of it was to ensure that some of the tenets of American society — that you’re innocent until proven guilty and those people that are low societal risks are allowed to be out of jail — then it’s worked,” said Sen. Nicholas Scutari (D-Union), chair of the senate’s judiciary committee and another prime sponsor. “The data bears out that it’s working.”

The declines persisted even as widespread trial delays spurred by the pandemic pushed the number of incarcerated persons up slightly.

Scutari also credited the reforms with saving counties money that would have been used on corrections. Union County this summer transferred inmates held at its county jail in Elizabeth to the Essex County Correctional Facility. County officials expect the arrangement to save Union $103 million over the next five years.

Officials in Hudson County approved a similar agreement to share substance abuse treatment and re-entry services with Union. The Union County facility is still being used as an intake hub and for temporary detentions.

The reforms initially caused some consternation among judges, who voiced concerns over the impact of stricter trial deadlines, but — save for the delays caused by COVID-19 — those do not appear to have borne out.

“I remember the judges were going crazy. ‘It’s going to be crazy. It’s too much work,’” Scutari said. “But now they’ve gotten it done, just like I expected. We have an excellent judiciary. They got it done. They understand it now. It’s working, just as intended. Low-risk individuals are being allowed to await trial with their freedom, and we’re not jeopardizing people’s safety by putting high-risk people out there.”

The policy shift has not led to a rise in indictable offenses committed by individuals on pretrial release, the report says. That number has held steady at about 13.8% since 2017, and court appearance rates for such persons increased to 90.9% last year, from just under 90% in 2019.

The share of individuals incarcerated for serious offenses increased again, rising to 79.7%. It was 75.9% in 2019 and 74.9% in 2018.

“Too many people have ended up in jail not because they committed a serious crime, but because they can’t afford bail. That unfair system, which reigned in New Jersey for a century, unfairly punished the poor and working class,” Rep. Donald Norcross (D-01), who sponsored the bill as a state senator, said in a statement. “We have more to do to improve equity and abolish discrimination in our criminal justice system – but the annual criminal justice reform report shows we are on the right path.”

To read more CLICK HERE

MCN/USATODAY NETWORK: ‘Goodbye and good luck’

Matthew T. Mangino
MCN/USATODAY NETWORK
May 24, 2021

Eight years ago I wrote my first column for what was GateHouse Media. Over those years, GateHouse expanded to include More Content Now and many more local newspapers. I have had the pleasure of writing 406 columns.

This is the end of the line - More Content Now ends its run this weekend. In this final column, I’d like to share with you what I’ve learned observing the criminal justice system over the years.

First, the criminal justice system is nuanced and complicated. It is also overused - from our schools to our homes and criminal statutes that don’t even require intent to get a conviction - people today are at the greatest risk in the history of this country to encounter the criminal justice system.

Unfortunately, there is little consistency in policy and lawmaking from jurisdiction to jurisdiction. Unlike the medical profession where diagnostic and treatment procedures are very similar nationwide, no such national consensus exists in the criminal justice system.

This hodge-podge of lawmaking may be best exemplified by the death penalty. More than 23 states have abandoned the death penalty. Ten states never adopted state-sponsored death after 1976 in what has become known as the modern era of the death penalty. Since then, 13 more states have outlawed the death penalty and three states have in place moratoriums on executions.

Yet, the federal government which has the death penalty on the books, and hadn’t carried out and execution in 17 years prior to July 2020, executed 10 people right up to end of President Donald Trump’s term.

There are roughly 2,553 men and women on death row. In the last five years 91 people have been executed. The death penalty has become arbitrary in the way executions are carried out.

The militarization of the police has exploded into a serious problem in the United States. During the process of creating quasi-military police units, law enforcement officers have evolved from peacekeepers to warriors.

The mentality of “us vs. them” has created police officers who believe the end justifies the means. Claims of excessive force continue to rise; racial profiling is a statistical reality and police officers kill on average 1,000 civilians per year.

The murder of George Floyd by a Minneapolis police office ignited the nation, and world for that matter, in a movement to hold bad cops accountable. There are efforts underway in countless states to reform things like limited immunity, monetary bail and mandatory minimum sentences.

Qualified immunity provides the often ridiculous barriers that litigants must get through to bring a civil rights action against a police officer. Monetary bail is a growing problem. Many men and women sit in jail awaiting trial simply because they cannot afford bond. This scenario often puts defendants in the unenviable position of taking a plea or continuing to sit in jail. Finally, mandatory minimum sentences, relics from the “tough on crime” era, don’t reduce recidivism and precludes judges from imposing mitigating sentences based on individual facts and circumstances.

We all need to be vigilant in the fight to abandon the policies of a generation of “lock’em up” politicos whose agenda has had a horrific impact on juveniles - often, underprivileged juveniles of color.

The “lock’em up” crusade of the 1990s has been slowly unraveling. Dating back to 2005, the U.S. Supreme Court decided Roper v. Simmons, outlawing the death penalty for juveniles, the Supreme Court has offered up a series of decisions limiting juvenile culpability. In Graham v. Florida, the court ruled that life without parole can only be imposed for a juvenile convicted of murder.

In Miller v. Alabama, the high court ruled states cannot sentence a juvenile to mandatory life without parole. In Montgomery v. Alabama the court went further and found that a trial judge may not sentence a juvenile to life without parole without a find of “incorrigibility.”

However, this past month, for the first time in 16 years the newly realigned U.S Supreme Court took a step backward on juvenile culpability. The court essentially reversed its finding in Montgomery and ruled that a judge need not find incorrigibility for a life sentence, the court judge need only consider sentences other than life without parole.

My admonishment to you: pay close attention. The tide may be turning in the judiciaries’ view of reform. Emphasizing punishment over rehabilitation will be bad news for those caught up in the criminal justice system and those who have to flip the tab - taxpayers.

Thanks for reading.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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