Category Archives: bail

MA – follow suit & eliminate cash bail

NEW YORK TIMES March 9, 2017.

HOUSTON — It was an awkward scene for officials of Harris County, Texas, who are defending themselves in federal court against a claim that they keep poor defendants locked up just because they cannot afford bail.

On Wednesday a judge and the county sheriff testified for the other side.

“When most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately black and Hispanic, that’s not a rational system,” said Sheriff Ed Gonzalez, who was elected after the case was filed.

Both the judge and the sheriff are defendants in the suit. Their defections were yet another sign of the growing skepticism over the fairness of the long-used system of money bail, especially when it is applied to those who cannot afford it.

The class-action lawsuit contends that on any given night, several hundred people are in the Harris County jail on misdemeanor charges solely because they cannot make bail. If defendants with bail bond amounts of $500 or less had simply been released, the county would have saved $20 million over six years, according to a “very conservative” estimate by scholars at the University of Pennsylvania.

The practice of setting money bail, particularly for low-level offenses, has come under heavy criticism, and states like New Jersey and Maryland have sharply curtailed its use in recent months. A growing body of evidence shows that even a brief detention before trial can disrupt lives and livelihoods, make case outcomes worse and increase the likelihood that the defendant will commit future crimes. Putting a price on pretrial liberty can allow those with money to go free even if they are dangerous, and keep the poor in jail even if they are not.

Civil rights lawyers have mounted a series of lawsuits against bail practices like those in Harris County, where people without ready money can spend up to four days in jail before getting a chance to even contest their bond amount. Almost a dozen similar cases across the country have been settled with significant changes to the local bail system.

But two of the biggest challenges, in Houston and San Francisco, are still in play. And in both places, key officials have sided with the bail critics.

In San Francisco, the city attorney, Dennis Herrera, and the state attorney general at the time, Kamala Harris, declined to defend against the lawsuit, saying the bail system was unfair. In Houston the district attorney, Kim Ogg, weighed in with an impassioned friend-of-the-court brief, writing, “It makes no sense to spend public funds to house misdemeanor offenders in a high-security penal facility when the crimes themselves may not merit jail time.” Like Sheriff Gonzalez, Ms. Ogg is newly elected.

Those left to defend the system have had a lonely uphill fight. James Munisteri, a private lawyer hired by Harris County, faced calls for his removal after he told the court at an earlier hearing that misdemeanor defendants might be in jail not because they couldn’t afford to post bond, but because they “want” to be there. “If it’s a cold week,” he added.

The judge, Lee H. Rosenthal of Federal District Court, was skeptical of that contention, calling it “uncomfortably reminiscent of the historical argument that used to be made that people enjoyed slavery, because they were afraid of the alternative.”

The case was filed last May on behalf of Maranda Lynn ODonnell, who was arrested on charges of driving with an invalid license. She spent over two days in jail because she couldn’t afford to pay her $2,500 bond. Civil Rights Corps, the organization whose director, Alec Karakatsanis, has led the legal attacks on unaffordable bail across the country, joined with the Texas Fair Defense Project, a nonprofit legal defense organization, and Susman Godfrey, a law firm, to bring the case.

So far, the county has spent $1.2 million on outside lawyers to defend itself.

The Supreme Court has held that liberty before trial should be the norm, and that bail conditions must be set based on the individual’s circumstances. Bail is not meant to be punitive; it is intended simply to ensure that defendants return to court. Texas law requires consideration of “the ability to make bail.”

But the videos made it clear that bail was routinely set with no inquiry into defendants’ ability to pay — or with the full knowledge that they could not. When suspects are first booked, their bail is set using a fee schedule based on the charge and on criminal history. At the probable cause hearing, where typically no lawyer is present, the hearing officer can raise or lower the bond, or grant a personal bond, which allows the defendant to go without an upfront payment.

The county argued that it began reforming its pretrial release system before the lawsuit was filed. It recently issued guidelines recommending the use of personal bonds for people accused of 12 low-level misdemeanors. Beginning on July 1, it plans to make public defenders available at the probable cause hearing. The bail fee schedule will disappear, to be replaced by a risk assessment, a more sophisticated method of determining an arrestee’s likelihood of fleeing or of committing a new crime.

Any injunction striking down parts of its pretrial release system would hamper these ongoing reforms, county lawyers argued. They also contended that a court order would tie judges’ hands, reducing their discretion and potentially allowing dangerous detainees back onto the streets. “There are a category of high-risk detainees who should not be released,” Melissa Lynn Spinks, a lawyer representing the county, said.

Besides the sheriff, another star witness for the plaintiffs was Darrell Jordan, elected as a Harris County criminal court judge last November. At first, Mr. Jordan said, he followed the bail practices of his 15 fellow judges. But he radically changed his approach after learning of research showing that locking people up makes them more likely to be repeat offenders.

Mr. Jordan began releasing nearly all defendants, either on a personal bond or on one they could afford. .

A homeless man who recently came before Mr. Jordan was prepared to plead guilty to a misdemeanor charge just to gain release, but changed his mind when he realized that the judge was willing to let him out of jail immediately.

”He had never heard of a personal bond,” the judge remembered. “He started crying when I told him he could go home.”

Bail Reformers Aren’t Waiting for Bail Reform

By ALYSIA SANTO

The nationwide movement for bail reform is advancing, gradually, through legislatures and courts. Just last week the U.S. Department of Justice filed a friend-of-the-court brief with the 11th Circuit Court of Appeals, arguing for the first time at this level that putting defendants in jail because of their inability to pay bail is unconstitutional. The appeals court is considering the case of a man in Calhoun, Georgia who was kept in jail for six nights on a misdemeanor charge of being a pedestrian under the influence because he could not afford $160 bail.

Meanwhile, bail reform advocates increasingly are taking direct action: raising charitable funds they use to put up bail for defendants too poor to pay their way out of jail.

These funds have sprung up in recent years in cities across the country, including Boston, Brooklyn, Nashville, and Seattle. Similar funds are currently being explored in St. Louis, Miami, Cincinnati, Oakland, Philadelphia, and Austin. Because bail is typically returned as long as a defendant meets his court obligations, bail funds can be used repeatedly to bail out more people.

Most proponents of bail funds see their work as a form of political resistance, using charity to chip away at a system they believe should not depend on money. “Our overall goal is to end money bail,” said Sharlyn Grace, co-founder of the Chicago Community Bond Fund, which has paid roughly $160,000 for the release of over 30 people, including $35,000 for a woman charged with killing her allegedly abusive husband. “One thing we’re clear about is that we don’t want to exist,” she said.

That is not what motivates the most recent potential entry into the bail fund world. The American Bail Coalition, a trade group for insurance companies that underwrite bail, is considering setting up a charitable bail fund of its own. This represents a change of tune for an industry that has repeatedlydenied that bail often leaves poor people languishing in jail while the well-to-do go home. “It does happen, so I think we need to admit that,” said Jeff Clayton, policy director for the industry coalition, although he insists the inequities aren’t as widespread as bail reform advocates claim. “We can do some good if we put our mind to it.”

Critics of bail suspect the insurance companies’ fund, if it materializes, is part of a public relations campaign to soften the industry’s image and slow the pace of serious reforms.

“The insurance companies think if they do a bail fund, that will slow down the progress of eliminating money, because then they can say, ‘Look, we don’t need bail reform, we’re making progress through bail funds,’” said Tim Schnacke, a bail critic who has analyzed and written extensively about bail systems.

“A national bail fund sponsored by the bail bondsman?” said Cherise Fanno Burdeen, the executive director of the Pretrial Justice Institute. “That’s like a free sample of heroin from a drug dealer.”

Burdeen said bail funds — whether run by the industry or its critics — are unlikely to interfere with bail reform efforts, because lawmakers around the country are more concerned about the other end of the bail system: dangerous people with the means to buy their way out, who may commit new crimes.

“The public safety element of this is more important to stakeholders than poor people who can’t post bond,” said Burdeen.

Bail funds, proponents say, are serving as laboratories of sorts, testing the long-held belief that defendants are more likely to behave themselves and show up for court dates if they have money at stake. The Bronx Freedom Fund, which is an outgrowth of a public defender office, says it has bailed out more than 600 people charged with misdemeanors since 2007. Although they had none of their own money on the line, the vast majority, 96 percent, returned for their court dates, in some cases as many as 15 appearances. Fifty-five percent had their charges dismissed entirely; many of them probably would have pled guilty if the fund had not freed them.

“Anybody will plead guilty to go home, and everybody knows it,” said Robin Steinberg, co-founder of the Bronx fund. “This model allows us to prove that point while freeing people in the meantime.” Steinberg said she is working to establish a national bail fund, called the Bail Project, that would provide seed money and technical assistance in communities across the country. They hope to launch in the fall.

Bail funds have an array of origins and structures. The Massachusetts Bail Fund was started in 2013 by a group of defense attorneys and social workers. The fund uses a scoring tool to help assess each applicant’s potential to appear in court and caps charitable bail at $500 per defendant. TheConnecticut Bail Fund, expected to launch this September, was organized by a group of Yale students who are now working on getting their state bondsman licenses (a requirement to post bail in some states). The Lorena Borjas Community Fund in Queens works to raise bail money for transgender women of color, mostly sex workers. And New York City Council Speaker Melissa Mark-Viverito is also working to establish a bail fund. Other funds were started by local activists protesting police violence, including bail funds in Baltimore, Oakland, Ferguson, Cleveland, and most recently, Baton Rouge, where nearly $300,000 was raised to help bail out protesters after Alton Sterling was shot by white police officers.

Laws in some states and cities make it far more difficult to sustain bail funds. When Just City, a nonprofit in Tennessee, tried to establish a bail fund in Nashville and Memphis, the group encountered an obstacle: in some parts of Tennessee, courts deduct fines and fees directly from a person’s bail deposit, regardless of who posted it; this threatened to slowly drain the fund. Nashville officials agreed to make an exception and return money to bail funds without deductions, but Memphis was less accommodating, and Just City has suspended its plan for a bail fund there.

The Massachusetts Bail Fund had early success, bailing out hundreds and documenting a 60 percent case dismissal rate for their clients. But the money ran out. “The need seems to be bottomless,” said Atara Rich-Shea, the fund’s operations director. She said getting the money back has been a challenge because the organization isn’t always notified when a case has concluded. They anticipate reopening in September.

This summer, the Chicago Community Bond Fund temporarily limited the number of new clients it accepts to focus on replenishing the fund. The fund is relying on success stories to help them raise that money. One recent client was Steven Cordon, 23, who was accused of having 1.6 grams of crack cocaine and was booked into Chicago’s Cook County Jail this April because he didn’t have $2,000 to bail himself out. He pleaded not guilty to drug possession and sat behind bars for a month awaiting trial before the Chicago fund was alerted to his case. The fund paid for his release on May 1, and four days later, a judge dismissed the charges, citing a lack of probable cause.

Cordon’s lawyer, Borjan Kovacevic, said the case could have gone much differently if Cordon hadn’t been bailed out. As a defense attorney, he has had numerous clients who pleaded guilty against his advice, he said, because they are desperate to be free. “I knew for a fact they were innocent, but they’re scared, they’re getting beat up, and all they can think about is getting out of there,” Kovacevic said.

Punished for being poor? Lawyers ask SJC to take up bail issue

From The Salem Daily News

BY JULIE MANGANIS STAFF WRITER Aug 5, 2016

SALEM — The state public defender’s office and an advocacy group are asking the state’s highest court to take up the question of whether cash bail is fundamentally unfair to poor people, citing a North Shore woman’s case.

In a filing on Friday, the Committee for Public Counsel Services and the group Equal Justice Under Law are asking the Supreme Judicial Court to take up the case of Jessica Wagle, a woman who is currently being held on $250 bail in a heroin possession case brought by Lynn police.

Wagle’s case was heard on Wednesday in Salem Superior Court, where her attorney argued that her $250 bail should be reduced to personal recognizance because she cannot afford to pay it and has no family in the area who are willing to post the bail.

Wagle’s lawyer, Shira Diner, told Judge Timothy Feeley on Wednesday that Wagle was being “punished for being poor.”

Feeley disagreed, pointing to a history of missed court appearances, or “defaults,” in her past cases as a reason to keep the bail at $250, the amount originally set on July 19 by Lynn District Court Judge Richard Mori, four days after her arrest.

Wagle, 32, who has struggled with heroin addiction for six years, her lawyers said, had been free during those four days after her arrest, until she walked into court and prosecutors sought to have her taken into custody on bail.

Her lawyers argue that both the SJC and the United States Supreme Court have repeatedly held that no person can be kept in jail solely because of poverty — and argue that neither Feeley nor Mori took into account Wagle’s ability to pay.

“This case raises an issue of fundamental importance to the Massachusetts justice system: Can a person be kept in a jail cell because she cannot make a monetary payment?” the attorneys for Wagle say in their filing.

“Although that basic rule has long been a pillar of our legal system, it is overlooked as a matter of daily practice in courtrooms and jails throughout the Commonwealth. This case is about the irrationality and harmfulness of wealth-based pretrial detention. Such a practice is terrible for public safety and grossly unjust,” the filing says.

In his decision on Wednesday, Feeley concluded that, based on Wagle’s record and a history of missed court appearances, the $250 bail was appropriate, and that her inability to pay doesn’t make it unreasonable.

Wagle’s lawyers say judges routinely “misuse” the bail statute and ignore the question of a defendant’s ability to pay.

If economic status cannot be used in determining a sentence or a probation violation, “it has no place in pre-trial release decisions,” especially when a person is still presumed innocent, Wagle’s attorneys write.
http://www.salemnews.com/news/local_news/punished-for-being-poor/article_a1c9e610-a056-516e-9ae3-79a9b571584c.html

States Lead the Way on Justice Reform

CreditDandy/John J. Custer

In New Jersey, voters and lawmakers gave judges more power to release low-risk defendants who can’t afford bail, letting them go home rather than sit in jail while they await trial. In Idaho, a new law created 24-hour crisis centers to help keep people with mental health issues from being locked up unnecessarily. Georgia and Louisiana established courts for military veterans accused of crimes. Hawaii funded programs to help reunify children with parents who are behind bars.

These are just a few of the hundreds of criminal-justice reforms that states around the country have put in place over the last two years, according to a new report by the Vera Institute of Justice.

While Congress continues to dither over a package of sentencing and corrections reforms for the federal prison system, the pace of bipartisan, state-level innovation is an encouraging reminder that there are ways to reduce the devastating impact of mass incarceration on families, communities and public safety. Nationwide, more than nine in 10 inmatesare housed in state facilities, so state reforms reach the vast majority of people in the justice system.

The Vera report draws three lessons from state experiences. First, long sentences do little, if anything, to deter crime. Second, community supervision is often safer, cheaper and more effective than prison for those convicted of low-level crimes. And third, the path from prison back to full participation in society is too often blocked by state and federal post-imprisonment penalties that make it extremely hard to establish a law-abiding life.

For decades, it was politically impossible to tackle these issues. But in 2014 and 2015, nearly every state adopted at least one measure to reduce the prison population, steer people away from prison (for example, through substance-abuse treatment programs) and smooth the way to re-entry for those coming out.

Many states have also taken steps to reduce or eliminate the use of long-term solitary confinement. In 2014, Colorado banned long-term solitary for those with serious mental illnesses, unless they pose a physical threat to themselves or others. In 2015, Nebraska banned the severest form of solitary, which isolated an inmate completely from all contact with other people.

Other states lowered sentences for drug and property crimes, increased opportunities for early release, and created housing and jobs programs to reduce the chances that those leaving prison would end up back behind bars.

Reforms like these are often associated with decreases in crime, or at least no increase in crime, which undermines the argument that public safety depends on doling out the harshest punishments available. For example, after California voters in 2014 overwhelmingly approved Proposition 47, a measure that sharply reduced penalties for low-level drug and property offenses, critics warned that jail populations would spike. In fact, the opposite has happened.

In Congress, however, some recalcitrant lawmakers still cling to outdated or incorrect beliefs about crime and punishment in America. They need to pay close attention to the ingenuity and the record of the states.