District Attorneys Across the Country Object to Bail Reform

Across the country, district attorneys are speaking out against bail reform, sharing reservations about the effectiveness of bail reform policies, the safety of victims and the people in the room creating policy. 

Most recently, New York district attorneys are speaking out. Gary M. Pasqua and Kristyna S. Mills spoke to the Watertown Daily Times about their concerns:

“It leaves out a ton….Someone coming up here from New York City who is selling crack, who’s selling heroin, who’s selling fentanyl, they can come up here, regardless of their criminal history, they could be a three-time felon…I can’t even apply to have them detained. They get released,” Mr. Pasqua said.

“I have a case right now, pending, where a guy made terroristic threats…that he was going to go into a well-known venue and shoot up the venue,” shared Mills. “He was caught with a loaded handgun…and indicated that the only way that he could be stopped is if he was arrested. Unfortunately that is the exact type of case that we are not going to be able to hold somebody under this new bail reform.”

Mills is also concerned with the safety of victims in her county, calling proposed policies “chilling” and “very, very dangerous.”

“Most defendants are going to be out now and they are going to have all of the information that they are going to need to be able to go after [victims and] witnesses if they choose to do so,” said Mills. “It is a very concerning couple of reforms in the way that they dovetail together, as far as public safety is concerned.”

And she isn’t alone. In New Mexico, District Attorney John Sugg is demanding a change after voters passed a constitutional amendment to bail reform in 2016. 

“I have seen child pornographers, rapists, child molesters, armed robbers, and killers walk out of jails across the state after the prosecution had presented up to four hours of testimony regarding the dangerousness of a defendant,” said Sugg to the Ruidoso News. “Here we are nearly a year later and the Court has failed to act to address the obvious shortcomings in the rules. 

Similarly, speaking to a local paper in Texas, Smith County District Attorney Matt Bingham is concerned with the risk of letting defendants out when they are charged with serious crimes is more important to him than how much money a defendant has.

“The issue is, ‘What’s the nature of the offense? What’s their flight risk? Are they a danger to the community?’” Bingham said. "And if somebody is, [what is] the appropriate bond amount for this case with these facts …One guy charged with it can make the $100,000 [bond] and the other can’t, then OK. I mean, that’s the nature. That’s why I drive a pickup truck and other people drive a Mercedes.”

Pasqua and Mills are also particularly concerned with who is contributing to policy decisions.  

“I think what we all want is knowledgeable people on the consequences of those decisions being allowed to have those conversations,” Mills said.

“Why are we not listening to the people who have actual, practical experience with these things and you can hear from every side? That would be the appropriate thing to do,” said Pasqua.

Bail Reform or Get Out of Jail Free Card?

A Look at New Jersey’s Attempt at Bail Reform

 

New Jersey’s Bail Reform Act of 2017 is a perfect example of how ineffective and dangerous bail reform can be.

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The New Jersey Bail Reform Act of 2017 eliminated the use of cash bail for most crimes across the state, allowing judges to regularly release defendants on their own recognizance. This policy has led to the release of dangerous defendants back onto the streets of New Jersey communities. It became such an issue that New Jersey lawmakers began walking back on their bail reform policies, realizing that too many accused criminals were being allowed back into society before their trial, and with no accountability.

In fact, a Politico article from May 2017 reported that New Jersey Attorney General Christopher Porrino released new guidelines for the bail system, just months after the initial policies took effect. He claimed, “…the new, stronger guidelines should better ensure that dangerous and recidivist criminals are kept behind bars while awaiting trial,” implying that the initial reforms allowed for too many defendants who should have been detained to be released – a practice that is simply unacceptable.

Police departments throughout New Jersey have criticized the new system. In an interview with NBC New York, South Plainfield Detective Joe Indano said, “Nobody’s afraid to commit crimes anymore. They’re not afraid of being arrested, because they know at the end of the day, they’re going to be released. It’s catch and release. You’re chasing around the same people over and over again. They’re being released and going back and offending and now you have more people as victims.”

According to a new report, of the 44,319 people arrested for crimes in 2017, more than 56 percent of defendants were released without bond or pretrial services, confirming Detective Indano’s claim that the Bail Reform Act of 2017 has made for a catch-and-release system. In fact, it took six arrests in the same number of months for New Jersey courts to finally detain one man for a series of burglaries.  

There have been quite a few cases in New Jersey in which defendants were released with what seems to be a get out of jail free card:

  • A man who tried to trade a video game for sex with a 12-year-old girl. His record also includes a juvenile conviction for sexual assault on a minor.

  • Two men who led police on a high-speed chase through three highways before slamming into a police car on Route 80.

  • An accused drug dealer who was in possession of approximately 1,850 doses of heroin.

  • A former military police officer who was indicted on two counts of second-degree manslaughter for allegedly running two victims off the road.

  • An ex-con who was carrying marijuana and a loaded handgun with two rounds of ammunition in his car.

  • 23 of 24 child sexual predators who were arrested for attempting to lure teenage girls and boys for sex through social media.

  • A woman who was charged with trying to burn down her former home.

  • A man with multiple outstanding warrants who made terroristic threats in a local Dunkin Donuts.

  • A member of a fraudulent credit card manufacturing ring.

This is troubling to say the least, and it’s only a fraction of the dangerous defendants who are walking down the streets of one of America’s most densely populated states before they face trial for their crimes.

Even more troubling is the cost of these reforms. The same report warns that “the system is ‘simply not sustainable’ and faces a ‘substantial annual structural deficit’ because of its funding mechanism.” Currently, the judiciary is spending more on the system than it’s collecting in fees.

How can we continue to consider bail reform like this in other states when it’s been such a clear failure in New Jersey?

Share Your Voice: UBA Members Share Their Stories

United Bail of America was created to give members a voice in the continuing national discourse on criminal justice reform. UBA members Mel Thacker (Big Trouble Bail Bonds, FL) and Randy Cauthen (Bost Bail Bonds, NC) both have more than 30 years of experience in the industry, and sat down with us to share their stories and thoughts on how recent bail reform legislation could affect the industry and the criminal justice system. The biggest take away? The elimination of cash bail has dangerous consequences for your community and your wallet.

“Bail reform in California at the moment, I think, is a joke. These programs aren’t free no matter how many claims that they are, the funding has to come from somewhere and that somewhere would be the state and federal level and that would come from the taxpayers’ pockets.” -Mel Thacker, Big Trouble Bail Bonds

“The criminal justice areas we should focus on would be more opportunity for drug rehab instead of imprisonment for low level drug users. We need to concentrate on the rehabilitation of these folks rather than incarceration,” Randy Cauthen, Bost Bail Bonds

Fifth Circuit Rules Bail Constitutional in Houston, Texas

Today the Fifth Circuit ruled in the case of O’Donnel v. Harris County that “bail is not purely defined by what the detainee can afford.” Meaning, that if the procedures for review of bail are adequate any bail schedule is constitutional, regardless of a detainee’s ability to pay.

Harris County is enjoined from imposing prescheduled bail amounts as a condition of release on arrestees who attest that they cannot afford such amounts without providing an adequate process for ensuring that there is individual consideration for each arrestee of whether another amount or condition provides sufficient sureties. 

In Harris county, a defendant who is unable to pay their bond will not automatically considered indigent or entitled to monetary relief. The court will now require an affidavit of indingency and verification of such claims by the court before ruling a detainee indigent. Following the filing of an affidavit, the court must hold a hearing within 48 hours.

This ruling comes after bail reform in Harris County (Houston) led failure to appear rates to skyrocket over 40 percent, far higher than 8 percent national average of detainees released on supervised, surety bonds.

The Houston Chronicle reported that of the 125 defendants released without bond between July 28 and October 5 of last year, 63 failed to appear in court and 114 had criminal records, including felonies that made them high risk – a disturbing trend among jurisdictions that have implemented similar bail reform policies.

The Fifth Circuit joins other high courts across the country in this finding, most recently the 11th Circuit US Court of Appeals who earlier this year ruled money bail to be constitutional in the case of Walker v. City of Calhoun.

 

Ruling: Bail is Constitutional

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The 11th Circuit US Court of Appeals ruled money bail to be constitutional in the case of Walker vs. City of Calhoun. For as long as it’s existed, there have been arguments about the use and fairness of the cash bail system in America. And while opinions and arguments hold a valid place in a democracy, high-level federal courts have upheld bail as constitutional time and time again.

Critics of bail argue that the practice violates the 14th Amendment’s Equal Protection Act, which requires the government to provide the same rights, privileges and protections to all citizens, and that bail favors the wealthy and disadvantages the poor.

However, the Equal Protection Act does not guarantee all situations the same level of scrutiny under the law. For example, gender and race receive the highest level of scrutiny under the law, but socioeconomic class does not. This is the same reason merchants can charge more money for a better service even though it could put those who cannot pay more at a disadvantage. Ultimately, the court concluded that if socioeconomic class was treated with the same level of scrutiny as gender or race the courts would be “flooded with litigation. 

In a similar case regarding the constitutionality of cash bail, the Supreme Court of Wyoming determined, “It is not necessary for a court to [fix bail] at a point that it can be made by the defendant” because “the measure is adequacy to insure [sic] appearance,” not “the defendant’s pocketbook and his desire to be free pending possible conviction.”

Critics also argue that any bail set to an amount that cannot be met by a defendant is in direct opposition to the 8th Amendment of the Constitution, which protects against excessive bail. However, the Supreme Court of Vermont concluded that “[a]lthough both the US and Vermont Constitutions prohibit excessive bail, neither this court nor the US Supreme Court has ever held that bail is excessive solely because the defendant cannot raise the necessary funds.” Put simply, a defendant’s financial inability to post bail does not make the amount excessive. 

Despite constant challenges in court, the cash bail system has been consistently upheld as constitutional, championing the dominant pillar of justice systems throughout history – that the punishment fits the crime. There is no legally valid argument against the cash bail system, and to continue presenting this issue to federal courts would not only be redundant, but also unproductive.

NPR Fails to Provide a Balanced Perspective on Bail Reform

NPR failed to respond to a call for balanced and unbiased coverage regarding recent Weekend Edition Sunday piece, “What Changed After D.C. Ended Cash Bail.” The piece, an interview with DC Judge Truman Morrison, failed to include any commentary that challenged Morrison’s perspective on the bail industry or presented data to support his claims.

NPR’s Melissa Block and her editors failed to acknowledge or respond when United Bail of America reached out to present balance in the form of the below Letter to the Editor:

 

September 7, 2018
To Whom It May Concern:

 Regarding the Weekend Edition Sunday piece “What Changed After D.C. Ended Cash Bail” (September 2, 2018): Washington, D.C. hasn’t used the cash bail system since 1992, but that doesn’t mean other states should follow suit.

New Mexico and New Jersey are prime examples of the devastating consequences of bail reform. New Jersey regularly releases dangerous defendants on their own recognizance under the Bail Reform Act of 2017, including a member of a fraudulent credit card manufacturing ring, an arsonistan Uber driver who was charged with distributing heroin and a man with multiple outstanding warrants who made terroristic threats. And that's only in the last few weeks.

Judge Morrison may believe that these defendants “would have bought their way out of jail” anyway, but are these really the types of defendants we want roaming the streets without oversight or the consequences that come from skipping bail or failing in the conditions of their release?

In fact, in some jurisdictions that have passed bail reform acts, failure to appear rates have skyrocketed over 40 percent, leaving unaccounted for defendants in communities and exhausting already limited police resources. In Washington D.C., 88 percent of defendants may make their court date, but that is clearly the exception and not the rule.

What’s more, that statistic comes at a vast cost to taxpayers. As it stands now, bail is a pretrial service provided by private business, specifically bail agents, and funded by defendants. In Washington D.C., with nearly 600,000 taxpayers and an annual budget of $65 million for pretrial services, United Bail of America (UBA) estimates that each taxpayer contributes about $108 annually to release and monitor approximately 2.6 percent of the District’s population. Now imagine the cost to taxpayers in larger states like California or Florida where UBA estimates a $3.7 billion and $2.7 billion annual cost, respectively.

Furthermore, Judge Morrison explains that Washington D.C. uses risk assessments to determine who gets released without paying bail. Risk assessments rely on “science” to predict human behavior, which can never be 100 percent accurate. Morrison fails to explain the expense of such algorithms, which sometimes require multi-million dollar upgrades to underfunded criminal courts across the country. Judge Morrison does admit that these assessments can actually further the inherent biases of the criminal justice system, a belief also shared by the American Civil Liberties Union (ACLU) and Human Rights Watch.

With a 12 percent failure to appear rate and a 4 percent re-offense rate, Washington, D.C. may post higher success rates than other states with similar pretrial programs, but it’s still not a perfect system. Just ask Kevin Sutherland, whose nephew was stabbed to death by a man released on his own recognizance after assaulting a police officer. If nothing else, this proves that statistics don’t always paint a clear picture.

Bail is not a tax on poor people, as Judge Morrison and criminal justice activists like to preach. Judges are responsible for setting bail and the conditions of release. The bail system simply holds defendants accountable for showing up to their trial so a judge or jury can determine their guilt or innocence – the backbone of our criminal justice system. 

There are certain criminal justice reforms we can all agree on, but the elimination of bail is not one of them. Effective reform will set reasonable bail schedules, hold courts accountable for any discriminatory practices and allow for speedier trials. 

Don Mescia
Executive Director, United Bail of America

Executive Director Don Mescia warns North Carolinians: Beware Unintended Consequences of Bail Reform

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In response to the recent news story "Is Durham's bail-bond system unconstitutional? Why the judge said wait" (May 28, 2018), Executive Director Don Mescia wrote the following column for Durham, North Carolina's The Herald Sun:

It is irresponsible and dangerous for attorney Allyn Sharp to argue that cash bail is “cruel and unusual punishment” in regard to her client’s statutory rape charge. District attorneys across the country have agreed not to seek bail for certain non-violent crimes. While this policy typically applies only to misdemeanors, Sharp apparently wants to add statutory rape to the list. 

Unfortunately, Sharp's request is in good company. Like other misguided bail reformers, she fails to acknowledge that failure-to-appear rates have skyrocketed 40 percent in some jurisdictions that have passed bail-reform acts, leaving unaccounted-for defendants in communities and exhausting police resources. 

Do we really want criminal defendants — and, in this specific case, an accused statutory rapist — roaming the streets of our communities without supervision, the consequences that come from skipping bail or failing in the conditions of their release? 

If Santana Deberry is elected district attorney for Durham County, she should study the impact bail reform has had in states that have instituted these practices. Here’s a hint: The consequences have been drastic and unintended.

Cities like Baltimore, St. Louis and Spokane have seen pretrial incarceration rates increase since implementing bail reform policies at 26 percent, 21 percent and 17 percent, respectively. This means that far more defendants — regardless of their ability to pay bail — are languishing in jail, waiting for their day in court. The result is a rise in mass incarceration, the very thing bail reformers are trying to prevent. 

What’s more, New Mexico and Iowa introduced bail reform, only to regret it. In fact, New Mexico Gov. Susana Martinez warned of the “devastating results,” calling the failed experiment an aggravation to “catch and release, revolving door justice system[s].” 

Surety agents, like those who are members of United Bail of America (UBA), offer a series of pretrial services to defendants at a lower cost than government-funded programs, including counsel on the conditions of bond, help finding employment, relocation, drug testing and review of defendant conduct while on bail. Our agents have even waived the initial premium, allowing it to be paid over time instead, and with no interest, simply to help their client. Personal interviews with potential clients ensure our agents have a financial interest in the successful behavior and appearance of their clients in court. 

There are certain criminal justice reforms we can all agree on: increased treatment alternatives for drug offenders, sentencing reductions, educational programming, re-entry services, reduced sanctions for technical violations, restored rights after a time limit and speedier trials. But as the data proves, eliminating cash bail is not a relevant addition to the list. 

The bail system and surety agents protect the state by keeping the burden of funding pretrial services off the backs of taxpayers; protect citizens by making sure the accused comply with the conditions of bail and face the court; and protect the accused by providing counsel and support during what can be a confusing and trying time. There are no better guardians of the criminal justice system than surety agents. 

CEO of Palmetto Surety Scott Willis Takes on Bail Reform in The Wall Street Journal

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CEO of Palmetto Surety recently offered his take on bail reform in the below letter to The Wall Street Journal: "The Bail System Evolved for a Good Reason"

The commercial bail industry is under attack, and the consequences could be devastating (“Governments Throw Book at Bail Bonds,” Business & Finance, June 8). Supporters of bail reform claim massive savings from reducing pretrial incarceration rates. However, their position fails to account for the billions of dollars in pretrial services that would become the responsibility of taxpayers.

Surety agents, like those who are members of United Bail of America, offer a series of pretrial services to defendants at a lower cost than government-funded programs can provide, including counsel on the conditions of bond, help finding employment, relocation, additional counseling, drug testing, office and home visits and review of defendant conduct while on bail. Personal interviews with potential clients—not artificial intelligence—ensure our agents have a personal financial interest in the successful behavior and appearance of their clients in court.

Justice is served when the accused obey the conditions of bail and show up for trial, and a judge or jury is able to determine innocence or guilt. The bail-bond system and surety agents protect the state by keeping the burden of funding pretrial services off the backs of taxpayers, protect citizens by making sure the accused comply with the conditions of bail and face the court, and protect the accused by providing counsel and support during what can be a confusing and trying time.

Scott Willis
Chief executive
Palmetto Surety
Charleston, S.C.

What Activists Won't Tell you

Bail reform advocates like to hide behind liberal rhetoric and the deep pockets of billionaires, like Mark Zuckerberg and George Soros, to advance their cause. What they fail to recognize is that eliminating cash bail has already been proven to have dangerous and unintended consequences. In reality, there is a troubling disparity between what bail reformers say and the truth about bail reform. We break down some of the most glaring examples here:

Don Mescia to the Charlotte Observer: Columnist Braxton Winston has it wrong on cash bail reform

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In response to the recent Viewpoint column, "Mecklenburg DA should tackle mass incarceration" (May 27) by Braxton Winston, United Bail of America Executive Director Don Mescia penned the following column:

Reforming the cash bail system, unlike Braxton Winston suggests, will not create a more just and fair criminal justice system. In fact, reforms like those Winston wants to see will serve only to undermine justice, incarcerate more defendants and threaten public safety.

Winston recommends that Mecklenburg District Attorney Spencer Merriweather “announce a list of charges for which his office will ask for release without money bail.” What Winston fails to acknowledge is that failure-to-appear rates have skyrocketed 40 percent in some jurisdictions that have passed similar bail reform acts, leaving defendants unaccounted for and exhausting police resources.

In the past few weeks alone, courts acting under the New Jersey Bail Reform Act of 2017 (which essentially eliminated bail for crimes across the state) have released a man accused of dealing altered drugs to middle schoolers; a man with multiple outstanding warrants who made “terroristic threats;” and a high school teacher with 11 outstanding warrants who was found in his car with a female student, drugs, sex toys and a weapon.

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Do we really want these defendants roaming the streets of our communities without the consequences that come from skipping bail or failing in the conditions of their release?

Winston goes on to claim that the cash bail system criminalizes poverty. But the reality is that cities such as Baltimore, St. Louis and Spokane, Wash., have seen pretrial incarceration rates increase since implementing similar bail reform policies at 26 percent, 21 percent and 17 percent, respectively. This means that far more defendants – regardless of their ability to pay bail – are languishing in jail, waiting for their day in court.

In reality, surety agents, like those who are members of United Bail of America (UBA), offer a series of pretrial services to defendants from all walks of life (and at a lower cost than government-funded programs), including counsel on the conditions of bond, help finding employment, relocation, drug testing and review of defendant conduct while on bail. Our agents have even waived the initial premium, allowing it to be paid over time instead, and with no interest. Personal interviews with potential clients ensure our agents have a financial interest in the successful behavior and appearance of their clients in court.

If Winston is encouraging District Attorney Merriweather to reform the cash bail system, he must not be aware of what happened in states like New Mexico and Iowa, which instituted cash bail reforms, only to regret it. In fact, New Mexico Governor Susana Martinez warned of “devastating results,” calling the failed experiment an aggravation to “catch-and-release, revolving-door justice system[s].”

There are certain criminal justice reforms most can agree on: increased treatment alternatives for drug offenders, sentencing reductions, educational programming, re-entry services, reduced sanctions for technical violations, restored rights after a time limit and speedier trials. But the numbers are in, and eliminating cash bail is not a relevant addition to the list.

The cash bail system and surety agents protect the state by keeping the burden of funding pretrial services off the backs of taxpayers; protect citizens by making sure the accused comply with the conditions of bail and face the court; and protect the accused by providing counsel and support during what can be a confusing and trying time.

There are no better guardians of the criminal justice system than surety agents.