Fundamental Cracks in the Foundation: A Mid-Year Report on Failing Efforts to Eliminate the Constitutional Right to Bail
June 13, 2016
I. Summary
The American Bail Coalition (ABC) along with various criminal justice stakeholder partners has been deeply involved at the national, state and local levels of government in the constantly changing dialogue on detention and release decision making from jail pending trial. Various national groups are engaged in activism for the elimination of financial bail conditions in the United States. This activism is threatening the fundamental right to bail, potentially costing states and localities billions of unnecessary revenue dollars by having to put defendants on probation prior to conviction, all while destroying the careful balance that judges find in each case between the State, victim, and defendant when they set bail.
This coordinated effort to attack financial conditions of bail has been leveraged in many forums—including unilateral view discussion panels organized by the judiciary, proposed legislation in the various state capitols, fiscal legislation at the federal level, attempts to change state constitutions, court rule-making processes, and proposed procedural changes at the local government level. These unnecessary reforms have been put to the test over the previous six months in these forums, including at the national level, and in each instances it has become clear there are serious cracks in the foundation underlying the assumptions that purport to suggest that we should eliminate all monetary bail conditions in the United States. Policy-makers, and more broadly the general public, must educate themselves on the facts, and stop listening to baseless, unspecific talking points that distort the circumstances rather than capture reality in the criminal justice system.
ABC now issues this brief report to address some of the flawed and unsuccessful attempts at unnecessary reform from our viewpoint on the front lines of this debate over the last six months.
II. No Surprise: New Jersey Bail Reform to Cost a Fortune
On June 8, 2016, the below news article estimated that the year one costs to implement New Jersey’s bail reform would exceed $50 million. There is no estimate as to how many additional resources will be needed in the out-years. ABC predicted the extreme expense long before passage of the legislation. One Judge previously said the reforms will cost an “extraordinary amount of resources.” Read the latest here.
III. Predictive Algorithms Are On Trial: They May Not Be As Predictive as First Thought and Can Discriminate Based on Race
The Pretrial Justice Institute advocates that we should “replace discriminatory cash bail with risk-based decision-making.” This is a call to use predictive algorithms, in concert with widely expanded preventative detention, to create a bi-polar system of bail which, based on a score, then determines who remains in jail for the entire time pending trial and those who are released with no financial bail conditions. In recent months, numerous attacks have come out criticizing the use and effectiveness of these predictive algorithms. Here is a sampling of some of the attacks on predictive algorithms:
–Wisconsin Supreme Court is going to rule on predictive algorithms; the company that runs the algorithm admits it is only 68-70% accurate. Click here to view.
–Former U.S. Attorney General Eric Holder on predictive algorithms: “Although these measures were crafted with the best of intentions, I am concerned that they inadvertently undermine our efforts to ensure individualized and equal justice.”
–In one study, the predictive algorithms were found to be “remarkably unreliable in forecasting violent crime: Only 20 percent of the people predicted to commit violent crimes actually went on to do so.” Click here to view.
–Similarly, as to non-violent crimes, the same study held that the predictive algorithm was “somewhat more accurate than a coin-flip.” Click here to view.
–The study also found that Eric Holder’s fears of “racial disparities” in these instruments had come true: Click here to view.
–An article in the Yale Law Journal Forum suggests that the use of the instruments may run afoul of the equal protection clause and may violate the prohibition against bills of attainder: Click here to view.
–ProPublica’s Jeff Larson on the dangers of predictive algorithms: Click here to listen.
IV. The Federal No Money Bail Act Was Quickly Killed
This legislation would have threatened local governments with the loss of more than $250 million in federal grant funding for important criminal justice programs as part of the Byrne Grant Program. As we announced on March 1, 2016, ABC moved immediately to stop this legislation by putting the word out at the U.S. Capitol and by engaging with local partners to stand with us from coast-to-coast through our member companies and agents.
Of course, while it’s been nearly two months since the bill stalled-out, it is worth recounting the bad policy that made it failed legislation from the start. Joining the fight against this legislation was U.S. Congressman Bob Goodlatte, who is the Chairman of the U.S. House Committee on the Judiciary, where the No Money Bail Act was referred. This was due to law enforcement opposition in the Congressman’s district, who then informed the Congressman that the legislation would harm a remarkable variety of important programs and force local governments to raise taxes to make up the difference. Among the list of programs were “prevention and education programs” and “crime victim and witness initiatives” that would have been on the chopping block. Ironically, “pretrial” programs would also have been cut.
V. The New Mexico Legislature Rejected the State Supreme Court’s Attempt to Change the New Mexico State Constitution to Implement the Bail/No-Bail Scheme in Favor Instead of Common Sense Changes
New Mexico Justice Charles Daniels led the lobbying charge against all monetary conditions of bail at the New Mexico State Capitol, attempting enshrine Eric Holder’s theory of bail into the New Mexico State Constitution. In fending off the Courts’ vigorous lobbying and testimony efforts, our team of ABC and various local agents in New Mexico, including Dario Gomez, Moose Gomez, Gerald Madrid and family, Jackie Sanchez and Linda Contreras, explained the impact to legislators and policy-makers of what Justice Daniels was proposing. The legislature rejected Justice Daniels’ approach and instead adopted a unanimous compromise negotiated by ABC which expanded the possibility of preventative detention for violent criminals and put a common sense procedure in place to mandate expedient review of judges of a person’s financial resources. These stories capture happenings in New Mexico this spring: Article 1 and Article 2.
VI. Governor Malloy’s Bail Reform in Connecticut Exposed the Fallacy That All Criminal Defendants Are “Unconvicted,” and Then Governor Malloy’s Plan Was Attacked by the Pretrial Justice Institute as Illogical
Governor Malloy proposed to eliminate financial conditions of bail for all misdemeanants in the State of Connecticut, in addition to eliminating bail agents by requiring all defendants to post 10% of their bail to the Court. ABC and the Bail Agents of Connecticut worked hard to get the administration to drop the 10% provision. Yet, Governor Malloy continued to persist on moving forward, and in doing so he drew the attention of many interest groups who ultimately put a stop to his bail reform. In a stunning and unexpected move, of the groups and individuals that opposed Governor Malloy’s bail reform was the Pretrial Justice Institute’s Executive Director (and “Criminal Justice Reformer”) Cherise Fanno Burdeen, who advocates for the elimination of all monetary bail across the nation (and thus you would think would support Malloy’s plan to eliminate all monetary bail for misdemeanors). Yet, she was quoted in a major newspaper attacking Governor Malloy’s bail reform. Burdeen said she didn’t see the “logic” in the Governor’s proposal because it didn’t consider the criminal history of the defendants.
Of course, she only made these statements after the criminal history of the defendants was exposed in the media. As it turns out, the Governor’s set of defendants who he said needed a “second chance” were not as “unconvicted” as Burdeen and her ilk would have liked to have had us all believe. (Burdeen said recently: “60 percent of jail inmates are unconvicted.”). Well, it turns out 60% of the “unconvicted” had at least one prior felony conviction, and 77% had three or more prior convictions. Not exactly “unconvicted.” So, we are left to ask Ms. Burdeen a simple question—if we eliminate monetary conditions of bail in Connecticut, as she would like us to do, what percentage of the Governor’s Second Chance 2.0 defendants (and the “wealthy” she says who get to be out on bail rather than being locked up, as they should be) is she going to advocate, based on her predictive algorithm, should be held preventatively in jail, i.e., without possibility of release for the entire period leading up to trial? The Connecticut Sentencing Commission, we are sure, would be interested in that answer.
VII. New York Judge Jonathan Lippmann’s Bail Reform Criticizing Judges and Forcing Unnecessary Reviews was Harshly Questioned by a Long Serving New York Justice
Justice Edward McLaughlin issued a harsh rebuke of the underlying fallacies of bail reform from the perspective of a trial judge who handles criminal cases every day. He’s spent 32 years on the bench in Manhattan, appointed by both Democrats and Republicans. Before becoming a judge, he served as a Special Assistant Attorney General in the New York AG’s Anti-Corruption Special Prosecutor’s Office, and as a Manhattan prosecutor. You can read his rebuke of Judge Lippman here. The New York Post could not resist the urge to pile-on, calling Lippman’s bail reform, “idiotic.” Click here to view.
VIII. Utah Legislature Rejects Giving State Courts a Blank-Check on Bail Reform
The Utah Legislature rejected the efforts of the State Court to give it the legal authority to make all substantive law as it relates to bail. The Legislature, in rejecting the Judiciary’s bill, made it clear that Legislatures and not judges are to be enacting substantive criminal law. In addition, the Judiciary waded into law enforcement policy-making by pushing mandatory cite-and-release crimes, retitling “bail” as “pretrial” release, and making many additional changes to add the veneer of the national movement to end monetary bail to Utah’s statutes without simply coming right out and saying it.
IX. News Flash: Money Bail is Constitutional—The Attempt to Sue to Eliminate All Monetary Conditions of Bail Has Hit Several Recent Snags
Despite the statement that, “civil rights law group Equal Justice Under Law has achieved major wins challenging the constitutionality of money bail practices around the country,” instead it is clear that they have scored minor settlements in cases against small cities. No Federal Court of Appeals has ruled on their equal protection bail theory first articulated by them and former Attorney General Eric Holder in the Clanton, Alabama case in February, 2015. Fortunately, there is a pending case in the 11th Circuit Court of Appeals wherein the City of Calhoun, Georgia has appealed a ruling upholding the equal protection theory of bail that may ultimately determine whether bail is constitutional. We think it is.
In addition, the same civil rights group upped their game by going after anything but a tiny jurisdiction, but have scored “no wins” since. They have filed no less than four complaints in San Francisco to cobble together a legal theory in order to dodge dismissal. In their latest complaint, they are again naming Attorney General Kamala Harris as a defendant who has absolutely no culpability or role in her personal or official capacities as Attorney General regarding bail. In Sacramento, we are still waiting for Judge Troy Nunley to rule on the motions to dismiss. At one point he called the Plaintiffs briefing nothing more than “freedom rhetoric” and “one-liner platitudes.” Now that two more cases have been filed in Houston, Texas, we expect a vigorous defense of the Eighth Amendment in Harris County. This is so especially since two out of the three named Plaintiffs, contrary to the Plaintiffs poorly-investigated allegations, were able to “afford” their bail no more than 24 hours after they decided to make a federal case out of it. Maybe they should have provided their clients a copy of the yellow pages to help them get out of jail, rather than apparently incorrectly alleging that they could not afford something they could.
X. The Public Overwhelmingly Rejects the National Anti-Money Bail Reform Agenda
As we have begun to poll the public on the agenda to eliminate monetary bail and expand deposit bail, the public overwhelmingly does not support these reforms. In polls conducted this spring in four states, there is an overwhelming rejection of the concept of elimination of monetary conditions of bail from the system. Generally in these polls, 4 out of 5 people reject the agenda advanced by the anti-money bail reform movement. In Connecticut, we took a moment to explain those results this spring: Click here to view.
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