Category Archives: pre-trial reform

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.”

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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.

Sen. Karen Spilka: Why a New Women’s Jail?

Four members of EMIT- End Mass Incarceration Together, a task force of UU Mass Action Network,

Sen KAren Spilka is a champion of the underserved.

State Senator Karen Spilka, D-Ashland, chairwoman of the Senate Ways and Means Committee.

met with Sen. Spilka’s aide, Aaron Carty Legislative Counsel [Aaron.Carty@masenate.gov], to learn more about why Sen. Spilka proposed An act establishing an eastern Massachusetts women’s county corrections facility.

“It is not the intention to build a new jail, but to open the conversation,” said Carty. “She is not married to anything. She is listening to what others think,” he added.

Sen. Spilka has a history of diverting people from the criminal justice system, including efforts in juvenile justice reform. In the 2013-2014 legislative session, Sen. Spilka sponsored legislation that raised the juvenile age minimum from 17 to 18 and legislation that prohibited the shackling of pregnant women in Massachusetts jails, according to Carty.

Women detainees have special needs and 40 percent of the people at Framingham MCI are there on a pre-trial basis, people who are often marginalized. The bill is intended to be a conversation starter to solve the problem, Carty explained. “She is totally open to other solutions,” he said.

Bill Gardner, an EMIT member from Arlington, proposed a community meeting in her district of Framingham, in which the senator could meet with community members and activists to explain her position and motivation for introducing the bill.

Her main goal behind the bill is how to best serve pre-trial detainees at Framingham MCI and jails across the state. Senator Spilka plans to address the intent of the bill when it comes before a committee hearing later this legislative session. In addition, the public is encouraged to express concerns and comments by testifying or submitting written testimony at all committee hearings.

Next steps toward reforming the Mass. justice system

THANKS TO YOU, regular voters who care, EMIT and UU Mass Action Network, delivered 700-plus

Massachusetts statehouse and state legislators have passed dozens of bills to fill our prisons and  jails. These bills often discriminate on the basis of race, ethnicity, income, social class, education, mental health and drug and substance addiction and abuse

The Statehouse is where we need to encourage lawmakers to pass a series of bills over a number of years to untangle the injustice of mass incarceration in Massachusetts.

letters to state lawmakers in January 2015 asking them to cosponsor criminal justice reform, especially to end mandatory minimum sentencing for low-level drug offenses and to reform pre-trial practices — what happens when someone gets arrested, and on what basis do we decide to incarcerate them, without being found guilty.

Reaching out to state lawmakers, especially representatives in face-to-face meetings, is one of the most effective ways to make our voice heard in future laws. This is the goal of EMIT.

We especially need voters to visit with state representatives in Springfield, New Bedford and Fall River, Plymouth-Cape Cod-The Islands, and Cape Ann/The North Shore. Can you join us? Please email emit.susan at g mail dot com. Our strategy is simple and issues can easily be understood and communicated to state legislators.

Thanks to the leadership of the State Senate President Stan Rosenberg, D-Amherst, the 40 members of the State Senate may be on board with criminal justice reform this legislative session. In 2015, we must focus on the 160 state representatives, and meet with them personally, in their home districts, with constituents like you and a few friends. You can meet at the public library or town hall for 30 minutes and share your urgency to end mass incarceration now.

EMIT is also co-sponsoring events to inform to reform so people feel more knowledgeable when meeting with state representatives.

Save March 28 in Amherst, 10 am to 2 pm at the UCC Church, 165 Main St. Featured speakers are Sen. Stan Rosenberg, who will give more details on justice reinvestment and State Sen. Jamie Eldridge who will describe some pending criminal justice reform bills. Formerly incarcerated people will share their stories, and participants will have time to network. Sponsored by EMIT and Social Justice Committee of Amherst UCC.

Save March 12 in New Bedford and April 16 in Springfield for additional events. More info to come.

In Arlington, on Saturday, March 14, 1-4:30 pm, attend a Road Map towards Justice: How to End Mass Incarceration in Massachusetts, at First Parish Unitarian Universalist 630 Massachusetts Avenue in Arlington.

Come learn about the bills related to mass incarceration and prison reform that might become law in the next two years, and how you can help make our criminal justice system more fair and effective.  You will hear from experts, receive fact sheets, and have time to connect with others and digest what you are learning.  Speakers include Rep. Dave Rogers, Rep. Sean Garballey, Barbara Dougan, Andrea James, Jon Tetherly, and EPOCA members.  Refreshments served too!

RSVPs to end-mass-incarceration@firstparish.info are appreciated but not required.

This interactive workshop is organized by the Mass Incarceration Working Group of First Parish Arlington and co-sponsored by the Criminal Justice Policy Coalition, End Mass Incarceration Together, EPOCA (Ex-Prisoners and Prisoners Organizing for Community Advancement), Families Against Mandatory Minimums, and the Mystic Valley Branch of the NAACP,