“We’re really at an amazing moment with bail"
April 10, 2017 1:02 PM   Subscribe

Following a national wave of lawsuits asserting that cash bail requirements violate the Fourteenth Amendment, New Jersey and Maryland have drastically reduced the use of cash bail, instead granting pretrial release to accused persons who would have qualified for release on bail in 2017. New York City similarly expanded the use of supervised release in 2016. Now California, New York State, and even Texas are considering similar bills, as is Chicago. Has bail reform in America finally reached a tipping point?
posted by showbiz_liz (31 comments total) 30 users marked this as a favorite
 
Before you reflexively snark, from the last link:

Although new US Attorney General Jeff Sessions has expressed skepticism about past efforts on jail and criminal justice reform, the shift to a new administration is unlikely to affect the changes that are taking place around bail reform, experts say.

“This is an issue that local jurisdictions and states get to decide, and the momentum that we’re seeing is taking place at that level,” explains Schwartztol. “So the presidential election does not change that in any direct way.”

posted by showbiz_liz at 1:03 PM on April 10, 2017 [9 favorites]


Of course, in Maryland, the bond industry is doing it's damndest to kill the law change. Can't interfere with the rentier economy.
posted by Hactar at 1:05 PM on April 10, 2017 [6 favorites]


Unsurprisingly, not everyone is a fan:

New Jersey - Bail reform is killing our business, bail bondsmen say

Texas - Bail bondsmen: Reform bill will drive us out of business
posted by showbiz_liz at 1:05 PM on April 10, 2017 [5 favorites]


(My lawyer coworker just said "well, if 'bail bondsman' were a less sketchy profession, they'd probably have a professional lobbying group smart enough to couch it in 'we're keeping people safe' terms rather than 'we really like having money' terms")
posted by showbiz_liz at 1:11 PM on April 10, 2017 [50 favorites]


Poor Eddie Moscone, just a hard-working businessman being driven out of business by the Man.
posted by praemunire at 1:28 PM on April 10, 2017 [1 favorite]


Where am I supposed to get all my pens now?
posted by Faint of Butt at 1:33 PM on April 10, 2017 [6 favorites]


Although I think the sentiment is good, I feel this will not end well.
posted by Samizdata at 1:45 PM on April 10, 2017


“This is an issue that local jurisdictions and states get to decide, and the momentum that we’re seeing is taking place at that level,” explains Schwartztol. “So the presidential election does not change that in any direct way.”

If anything, it seems like local jurisdictions are pushing against a number of Presidential plans, which is heartening only in the fact that not everyone is jumping on the "let's screw the poor, minority populations every way we can" bandwagon.

Where am I supposed to get all my pens now?

Banks, car dealerships, trade shows, some doctor and dentist offices, and if all else fails, the internet.
posted by filthy light thief at 1:46 PM on April 10, 2017 [2 favorites]


Although I think the sentiment is good, I feel this will not end well.

How so?
posted by showbiz_liz at 1:50 PM on April 10, 2017


Bail has always seemed weird to me. Essentially, you put up money as a guarantee that you will show up to court, when it is returned. The court is trying to assure that you will return. However, if the money means nothing to you, it is not an assurance at all. Also, courts know about bail bonds, where you give up permanently 10% of the bail amount for someone to front the other 90%. So courts multiply how much you can afford by 10 times, so you can barely make bail, but then have the bail bonds people act as the baby sitter to make sure you show up. It just seem slimy by the courts and the bail bonds people, and a tax on those that can't afford bail.
posted by Xoc at 1:50 PM on April 10, 2017 [16 favorites]


Where am I supposed to get all my pens now?

From Sylvester Stallone, of course.
posted by Naberius at 1:51 PM on April 10, 2017 [4 favorites]


im very trivially involved in the effort to prove supervised release is working as intended in NYC, so this post warms my heart.

On the complete opposite end of the country and spectrum, heres a story about an eye popping posted bail of $5M cash and $60M property collateral (her bail was set at 35M for the contract killing of the father of her two children, CA requires 2x the value if property is used in lieu of cash). must be nice having (really) rich family and friends.
posted by Exceptional_Hubris at 2:01 PM on April 10, 2017 [4 favorites]


From Sylvester Stallone, of course.

AKA His Nibs.
posted by Splunge at 2:18 PM on April 10, 2017 [1 favorite]


In addition to advocating for bail reform in your own state/locality, you can also contribute to bond funds around the country:

Chicago Community Bond Fund
Brooklyn Community Bail Fund
Bronx Freedom Fund
Memphis and Nashville Community Bail Funds
Massachusetts Bail Fund

It's a great act of harm reduction while we're in the process of working toward a more just system. Per the director of the Bronx Freedom Fund, 97% of the Bronx Freedom Fund’s clients attended all of their court appearances; in 62% of cases, the charges were dismissed, compared to a plea rate of over 90% for those who don’t make bail.
posted by melissasaurus at 2:27 PM on April 10, 2017 [23 favorites]


I met a friend of a friend once who was a bail bondsman. I'm sure most bail agents are caring professionals who lead upstanding lives. The dude I met seemed like a bust waiting to happen.

While I was writing this comment, I googled and asked my buddy about him (guy had a distinctive name—"a TV name," I remember him saying). He has left the industry and is no longer a friend of my friend.
posted by infinitewindow at 2:48 PM on April 10, 2017 [1 favorite]


I'm sure most bail agents are caring professionals who lead upstanding lives.

Yeah, I wouldn't take that bet. Seems like a prime field for folks who washed out of the police force or couldn't make the cut to begin with. And, when you consider the bad apples who actually get through the psych screening and other kinds of evaluations necessary to become and remain a police officer, the leftovers don't look too good.
posted by tobascodagama at 4:02 PM on April 10, 2017 [6 favorites]


I was also going to ask about how this would affect plea rates and thus incarceration rates. There was an article on the blue posted a few days ago arguing that pleas (as created by prosecutors) are a huge part of what drives incarceration rates. And I remember reading some time ago that inability to make bond drives many people to accept plea deals. The point of that article was the the whole justice system could be brought to a standstill if prosecutors actually had to make their case in front of a judge or jury for every person charged, rather than just efficiently telling them what sentence to accept-or-else. So if this means fewer people accepting pleas, that seems like a good thing, even beyond people getting to be free when they haven't been convicted of anything.
posted by If only I had a penguin... at 4:15 PM on April 10, 2017 [11 favorites]


I was also going to ask about how this would affect plea rates and thus incarceration rates. There was an article on the blue posted a few days ago arguing that pleas (as created by prosecutors) are a huge part of what drives incarceration rates. And I remember reading some time ago that inability to make bond drives many people to accept plea deals. The point of that article was the the whole justice system could be brought to a standstill if prosecutors actually had to make their case in front of a judge or jury for every person charged, rather than just efficiently telling them what sentence to accept-or-else. So if this means fewer people accepting pleas, that seems like a good thing, even beyond people getting to be free when they haven't been convicted of anything.

Kalief Browder
posted by fuse theorem at 4:55 PM on April 10, 2017


Yeah, I wouldn't take that bet.

I was being just a bit tongue-in-cheek there. But I'm sure any MeFites who are bail bondmens are wise, compassionate etc.

Arrests can happen any place and any time, and 24-hour small-time bondsmen live on very little sleep, something difficult for most people without access to illicit substances. Of course, bondsmen meet people who have that access every day at work.
posted by infinitewindow at 5:25 PM on April 10, 2017


Not to be too much of a downer, but... Here in Kentucky they actually abolished bail bondsmen, after determining that they were predatory, etc. And the legislature came up with a bunch of reforms to assess people a risk level based on danger to the community & likelihood to come back to court, with recommendations that nearly everyone except those high or elevated risk level were supposed to be released on their own recognizance or given credit towards their bail for each day they spend in jail pre-trial. All great reforms, and as someone trying to get people out of jail, the law is heavily on my side when it comes to this issue.

But just as judges can only do so much when legislatures strap them with mandatory minimums, legislatures can only do so much when elected judges insist on keeping people in jail in pre-trial proceedings. Usually based on heavy pressure from media and/or victims.

So what do we have? Severe overcrowding of the jails, and tons of people who plea to get out of jail because, without bail bondsmen, they are simply unable to get out at all without taking a deal. My public defender office even tried class habeas suits at one point to get the judges to enforce the law, and have been met with no success after no success (not to mention other legal problems like the narrowness of habeas relief and how quickly these issues become mooted).

I am not advocating that we bring back bail bondsmen, but the problem with bail bonds in general is that they are a disease. The whole bail bonds system is a huge systemic, entrenched part of a criminal justice system that expertly maintains itself. And cash bails are reinforced even by seemingly well-meaning groups and political efforts, because what victims and, by extension, victims advocates want most is for people to stay in jail immediately after an alleged crime is committed. Meaning that judges, as political creatures, will keep finding new and inventive ways to keep people in jail pretrial, despite legislative action to the contrary, up and until the public as a whole stops relying on the criminal justice system to solve all of its problems.
posted by likeatoaster at 5:30 PM on April 10, 2017 [10 favorites]


legislatures can only do so much when elected judges insist on keeping people in jail in pre-trial proceedings [...] So what do we have? Severe overcrowding of the jails, and tons of people who plea to get out of jail because, without bail bondsmen, they are simply unable to get out at all without taking a deal.

Hmm, this is interesting - New Jersey and Maryland both have appointed judges, not elected.

Maryland's measure is pretty new, but in NJ at least it's seriously reduced the pretrial population so far.

I believe both the NJ and Maryland bills also set pretty specific criteria for who can be detained and who shouldn't be. And since both of these bills were explicitly passed partly as cost-cutting measures, there hasn't been this level of resistance on the implementation level (though people are obviously still lobbying against it).
posted by showbiz_liz at 5:37 PM on April 10, 2017


All that being said, in my experience people who post a cash bond are also generally bad at coming back to court after the first time, maybe because or alongside the fact that judges and prosecutors tend to feel bad about forfeiting grandma's savings or whatever. I'd be wiling to bet that on net, people who post cash bonds are not all that much more likely to come to court than people released on their own recognizance. This should probably be actively studied more.
posted by likeatoaster at 5:38 PM on April 10, 2017


I'd be wiling to be that on net, people who post cash bonds are not all that much more likely to come to court than people released on their own recognizance.

God I wish I could find the studies I've seen on this, because as I recall, people released on recognizance are actually slightly MORE likely to show up. That makes sense to me - multiple studies have shown that people who believe that a justice system has treated them fairly will be more likely to accept negative outcomes. (I'm in a coffee shop or I'd do more digging!)
posted by showbiz_liz at 5:41 PM on April 10, 2017 [6 favorites]


Although I think the sentiment is good, I feel this will not end well.

How so?

Although I think the existing laws and guidelines about bail quite suck, when I see major shifts like these, I start worrying about precedent settings leading to laws being further weakened to the point they can't be used well enough to punish the people it is supposed to penalize.
posted by Samizdata at 7:09 PM on April 10, 2017


Are there laws that are supposed to penalize people who haven't been convicted of anything?
posted by If only I had a penguin... at 7:36 PM on April 10, 2017


Yes, I'm not really conscious of laws that are intended to punish those who have merely been arrested for a crime?
posted by praemunire at 7:44 PM on April 10, 2017


What I was really saying in more diplomatic terms (or apparently not) is that any changes in the law to benefit the poor magnify the original benefit to the rich.
posted by Samizdata at 3:03 AM on April 11, 2017


I really can't tell what you're trying to get at - are you just saying that in general nothing purporting to help the poor will ever actually work, or is there some specific outcome you're worried about here?
posted by showbiz_liz at 5:49 AM on April 11, 2017 [1 favorite]


Lawsuits have been largely successful in court, thanks in part to actions taken by President Barack Obama’s Department of Justice, which issued an amicus brief on the issue last year. In that brief, it argued that “a bail scheme that imposes financial conditions, without individualized consideration of ability to pay and whether such conditions are necessary to assure appearance at trial, violates the Fourteenth Amendment” and its equal protection clause and is thus unconstitutional.
Fourteenth Amendment? How about the Eighth Amendment?
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Since bail isn’t supposed to be punitive, any amount the defendant can’t afford is excessive.
posted by El Mariachi at 8:16 PM on April 11, 2017 [1 favorite]


I'm not a lawyer but I work with lawyers so, grain of salt, but:

The 8th is way too vague to make a firm argument like that. Think like a lawyer - 'excessive' is so vague that it could mean anything. What's it mean exactly? Who defines that? It might as well say 'we can make you pay bail but not lots and lots of bail!' How long is a piece of string, etc. Sure you can make the argument but there are enough counter arguments that it's not a slam dunk.

But the 14th is less equivocal:

"[...]nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The argument as I understand it is, if the law says that people with means charged with certain crimes can await trial outside of detention, then a law that says people without means who are charged with the same crime cannot await trial outside of detention violates the equal protection clause. It's much less ambiguous.
posted by showbiz_liz at 6:56 AM on April 12, 2017 [1 favorite]


Thought so - in the early 70s the Equal Protection Clause was the basis of a Supreme Court ruling saying that people can't be imprisoned for debt, including failure to pay legal fines. Obviously this ruling has not been completely implemented, but that precedent does get people out, if not always.
posted by showbiz_liz at 7:06 AM on April 12, 2017 [1 favorite]


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