Bail reform in New York hasn’t waited for legislative changes. The percentage of cases in which bail is required in the city has dropped in half over the past three decades. At the same time the rate at which defendants are released without having to post cash bail has increased by half, a new study reveals. The changes largely reflect new attitudes among judges, defense attorneys and prosecutors. All this before legislators vote on a measure that would eliminate cash bail in New York. TMP’s Eli Hager has our story.

Jordan Gross (Alexander Blewett III School of Law at the University of Montana) has posted Devil Take the Hindmost – Reform Considerations for States with a Constitutional Right to Bail (Akron Law Review, Forthcoming) on SSRN. Here is the abstract:

There is no right to bail under the U.S. Constitution. This means the question of who is bailable in state court is left entirely to state law, and the question of who is bailable in federal court is governed entirely by statute. Most original state constitutions guaranteed that “all persons shall be bailable by sufficient sureties,” except those charged with a narrow category of serious offenses (typically capital crimes). At the Founding, federal statutory law gave federal defendants similar rights. These early authorities reflected a national consensus on several points: the sole justification for bail is to secure a defendant’s presence at future court proceedings; all non-capital defendants should be released pending trial upon providing adequate assurances that they will return for trial; and some capital defendants can be detained pretrial because the prospect of losing one’s life if found guilty is such a powerful incentive to flee that the state’s interest in securing the defendant’s trial presence outweighs his interest in pretrial liberty. This traditional right to bail is categorical – if an accused is charged with a bailable offense, the trial court must set bail, and it must release the accused if he, or someone on his behalf, posts bail.

The trial court can impose conditions of release, including requiring “sufficient sureties.” But it cannot detain non-capital defendants without bail for any reason other than a failure to post bail. It cannot, for example, detain a defendant to prevent him from fleeing justice or to protect others in the community.

Under early English law, from which American bail law derives, bail was a mechanism for transferring custody of an accused to a third party – a surety – who promised to produce him for trial. The surety’s promise could be unsecured – backed by the surety’s word alone, or it could be secured by a pledge of money or property subject to forfeiture if the accused was not produced for trial. Historically, the surety was a person with a social connection to the accused, such as a relative or employer. In the United States, one of only two countries in which it is legal to collect a fee for securing a criminal bail bond, a surety can also be a commercial entity. Commercial, for-profit bail bonding is authorized in most states. In most traditional right to bail states that permit commercial bail bonding, secured money bail is a mainstay of bail administration. The commercial bail industry is loosely-regulated. This has allowed predatory and unscrupulous bail bonding practices to flourish unchecked in many traditional bail jurisdictions.

The traditional right to bail is anchored to the ideal that most defendants should be at liberty pending trial. The routine use of secured money bail as a condition of release in modern U.S. bail administration, however, has resulted in the routine pretrial detention of millions of Americans each year who cannot afford bail. These defendants are disproportionately non-white, and most are accused of non-violent misdemeanor offenses. Defendants who spend time in jail pretrial pay a steep price – they may lose housing, employment, and other opportunities; their ability to assist in their defense is hampered, and they are more likely to plead guilty and be convicted at trial. Those who post bail may end up in debt to a bondsman.

Congress passed the Bail Reform Act of 1966 to curb wealth-based pretrial detention practices in federal court. The 1966 Act made money bail a release condition of last resort in federal court and mandated that no federal defendant could be detained based on an inability to post money bail. These changes addressed concerns about economic inequities in federal bail practice, but created public safety concerns. Traditional, money-based bail administration does not permit a court to detain a bailable defendant pretrial, even if he poses a risk to the community. But as long as money bail is in the mix, courts can incapacitate a dangerous, but bailable, defendant by setting bail in an amount it hopes he cannot pay. Setting bail in an unpayable amount is an unauthorized, yet tolerated, practice in jurisdictions whose laws do not permit pretrial detention of non-capital defendants without bail. When Congress sidelined money bail in federal court that made it harder to use bail to detain dangerous defendants pretrial. To remedy this, Congress amended the Bail Reform Act in 1984 to authorize preventative pretrial detention in federal court – that is, detention without bail to prevent the defendant’s flight or to protect the public. Most states have also abandoned the traditional right to bail and embraced risk-based pretrial release and detention practices. Like the federal court, most states now permit preventative pretrial detention without bail for some non-capital defendants and treat money bail as a disfavored condition of release. Today, twenty-two states, fewer than half, continue to recognize an absolute constitutional right to bailability by sufficient sureties for non-capital defendants.

The devastating effects of money bail on poor defendants and their communities, with no corresponding public safety benefit, are well-documented. Bail reform has been a topic of discussion in the U.S. since at least the 1960s, and it has received an extraordinary amount of media and scholarly attention in the last several years. The focus then and now has been primarily on the undisputed negative aspects of money-based bail administration. Relatively little attention is given to understanding why a state may continue to embrace traditional bail administration practices notwithstanding the many downsides of money bail. A great deal of the complexity surrounding the law and history of bail is often lost in the process. To fill that gap, this Article identifies practical, legal, and philosophical reasons that may prevent or discourage states from abrogating the traditional right to bail in favor of risk-based bail administration.

The current bail reform narrative frames bail administration as a binary choice between money bail and risk-based assessment. This Article posits that this is a false dichotomy and that right to bail states can address some of the problems caused by money-based bail administration without abandoning the traditional right to bail entirely. Criticisms of money-based bail administration have not changed much since the 1960s, but the legal and political landscape has. This Article cautions that right to bail jurisdictions that do not adapt to this new climate may end up on the wrong side of a rapidly evolving equal protection jurisprudence. At the same time, states that abandon the traditional right to bail face a different set of risks and trade-offs that need to be considered. Whether to pursue bail reform, ultimately, is a choice for the electorates in the remaining right to bail states, and that requires a discussion about the value of pretrial liberty, concerns for public safety, and how much power courts should have to detain accused persons pretrial based on a prediction about future behavior. In the interim, legislatures in right to bail states have a responsibility to ameliorate some of the hardships money-bail causes poor defendants and rein in the excesses of commercial bail bonding industry.

Stop and Frisk in a Concealed Carry World by Shawn E. Fields, 93 Wash. L. Rev. 1675 (December 2018).

This article considers the tension between the “conceal and carry” legislation currently in place in all states, and investigative stop-and-frisk under Terry v. Ohio, which permits frisks based on an officer’s investigation of possible gun possession.  The author proposes community policing alternatives as a solution to respect the rights of permitted carriers in marginalized communities while also protecting officers.

New England creates a regional opioid initiative

The chief justices of the six New England states have launched the New England Regional Judicial Opioid Initiative (NE RJOI), the second regional group of its kind.
The establishment of the New England group, which includes Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont, comes at a time when federal, state and local leaders have committed to work together to combat the opioid epidemic and to help others recognize the crucial role that the courts play to fight this crisis.

The first joint effort, the Appalachia/Midwest Regional Judicial Opioid Initiative, included Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee and West Virginia. It was established in 2017 – the same year the Conference of Chief Justices and the Conference of State Court Administrators established the National Judicial Opioid Task Force. The national task force, which NCSC staffs, was created to examine current efforts and find solutions to address the opioid epidemic.

Like the states in the first regional group, the New England states have experienced some of the highest opioid-related overdose death rates ranging from 36 deaths per 100,000 in New Hampshire to 18 deaths per 100,000 in Vermont, according to the most recent figures available. The New England states also have some of the nation’s highest rates of opioid prescriptions per 100 people. The rates range from 60 per 100 in Massachusetts to 70 per 100 in Maine.

In support of the NE RJOI, the U.S. Justice Department’s Bureau of Justice Assistance has awarded the group $1.5 million. The initiative intends to develop a multi-state approach to the opioid epidemic with a focus on the courts.

The project will allow states to share best practices, coordinate and standardize procedures, and communicate in a more targeted and unified way.

Aurelie Ouss and Megan T. Stevenson (University of Pennsylvania and George Mason University – Antonin Scalia Law School, Faculty) have posted Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail on SSRN. Here is the abstract:

Recent criminal justice reform efforts have focused on electing progressive prosecutors to implement change, such as the reduction of cash bail as a requirement for pretrial release. However, critics worry that removing cash bail will decrease account- ability and increase failure-to-appear in court. We test this by looking at the effects of the No-Cash-Bail reform policy initiated by Philadelphia’s recently elected District Attorney, Larry Krasner. Under this policy, the DA’s office stopped requesting cash bail for defendants charged with a large variety of different offenses, both misdemeanor and felony. This policy led to an immediate 23% increase (12 percentage points) in the fraction of eligible defendants released with no monetary or other conditions (ROR), and a 22% (5 percentage points) decrease in the fraction of defendants who spent at least one night in jail, but no detectable difference for longer jail stays. The main effect of this policy was therefore to reduce the use of collateral to incentivize court appearance. In spite of this large decrease in the fraction of defendants having monetary incentives to show up to court, we detect no change in failure-to-appear in court or in recidivism, suggesting that reductions in the use of monetary bail can be made without significant adverse consequences. These results also demonstrate the role of prosecutors in determining outcomes over which they have no direct authority, such as setting bail.

One of my recent orders was picked up by the Minneapolis StarTribune, Paul Walsh:

A legal objection — with tongue in cheek suspected — was filed Thursday against what is just the latest drumbeat of a relentless and exhausting winter. Hennepin County District Judge Kevin Burke signed an emergency temporary restraining order filed by the citizens of Minnesota that names as defendants Minnesota Meteorologists, Old Man Winter and Mr. Snow.

In his ruling, laden with ample doses of legalese and humor, Burke wrote, “This order is issued because there is compelling evidence in the record that Minnesota Meteorologists have conspired with the other defendants to increase television and radio ratings. Who, for example, would watch the weather in Hawaii, where it is always nice?”

Read the full order here.

Could Black English Mean a Prison Sentence? By John McWhorter, The Atlantic (Jan. 31, 2019), 

Here is a quick look at how cultural variations in language usage can easily become mis-transcribed by court reporters.  This can obviously result in inaccurate (and unjustly incriminating) court transcripts. (While this article is being presented from one viewpoint, we thought it was timely and merited inclusion because of the recent focus the Judicial Council and its Court Record Workgroup has put on the court record. Readers can evaluate it as they would any other opinion piece.)

Fees and Fines: The Criminalization of Poverty by Kiren Jahangeer, The Public Lawyer (Winter 2019).

Across the nation, offenders are burdened with excessive fees and fines, most of whom are already economically marginalized.  The author argues that this has contributed to the negative perception of the justice system.  This subject is interesting to consider alongside the recent Supreme Court decision in the civil forfeiture case of Timbs v. Indiana (No. 17–1091), which held that the Eighth Amendment’s Excessive Fines Clause is applicable to the States.

There are people who honestly forget about a court appearance or have the wrong time. There are courts that address this problem by texting a reminder. And as reported in Gavel To Gavel this issue is drawing attention in State Capitols.  Bills in three states have been filed in the last month to require state courts (in particular the various administrative offices of the courts) to develop text reminder system.

Colorado SB 36 appears to be a revised version of HB 1081 of 2018.

Under the 2019 bill, the state court administrator would have to roll out a text reminder program in four of the state’s judicial districts by January 1, 2020. “In administering the program, the state court administrator shall prioritize the use of text messages to remind criminal defendants with the capacity to receive text messages, unless and until a more effective technological means of reminding defendants becomes available.”

It is not clear from the text whether defendants would opt-in or opt-out of such text messages.

Tennessee’s legislature is considering legislation (SB 740 and HB 1104) that appears to be almost a cut-and-paste of Colorado’s HB 1081 of 2018 and/or SB 36 of 2019.

The third state (Massachusetts) is placing its proposed text messaging system for courts as part of a larger omnibus pretrial release package (HB 66) which is itself a repeat of a 2018 proposal (HB 4903).

In this 2019 iteration, there is an explicit opt-out provision and confidentiality provision (“such information may not be used in any proceeding”) but these have exceptions:

1) A judge can order a defendant to participate in the text message system as part of a pre-trial release order.

2) “The fact that a defendant did or did not participate in this system shall be marked on the docket and may be used in a proceeding if otherwise admissible.”

Susan A. Bandes, Marie Pryor, Erin Kerrison and Phillip Goff (DePaul University – College of Law, City University of New York – Center for Policing Equity, University of California, Berkeley and UCLA Department of Psychology) have posted The Mismeasure of Terry Stops: Assessing the Psychological and Emotional Harms of Stop and Frisk to Individuals and Communities (37 Behavioral Sciences & the Law Issue 2 (2019)) on SSRN. Here is the abstract:

In Terry v. Ohio, the U.S. Supreme Court relied on a balancing test to uphold the reasonableness of the practice known as “stop and frisk,” balancing the contribution of the practice to effective crime prevention and detection against the nature and quality of the intrusion to individual rights. In recent years, statistics have been powerfully deployed by legal scholars, jurists, and policymakers to challenge the assumption that stop and frisk leads to frequent discovery of contraband or other criminal behavior, and to address stark racial and ethnic disparities in the deployment of stop and frisk. But the other side of the Terry equation — the nature and quality of the intrusion — has received far less attention from the legal community. With few exceptions, Terry jurisprudence portrays the Terry frisk simply as a brief pat-down of the outer clothing and treats each Terry stop as an isolated encounter for purposes of measuring the harm involved. Yet there is a robust social science literature on the effects of stop and frisk on individuals, including data on its effects on individuals from marginalized or vulnerable groups, on individuals over time, and on communities as a whole.

Moreover, stop and frisk in the current era has evolved from a tool in the arsenal of individual officers to a systematic, widely deployed strategy. This article argues that the failure to grapple with the application of modern knowledge to modern policing practices leads to a mismeasurement on both sides of the Terry equation. Not only does stop and frisk cause a wide range of emotional and psychological harms; these harms may also interfere with the ability of law enforcement to prevent and investigate crime. Even apart from any legal doctrinal implications for stop and frisk jurisprudence, recognizing the flawed assumptions described in this article should encourage all the relevant stake-holders to re-evaluate the consequences of the Terry regime.