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By Wendy Shang

The idea that bail in the form of money bond is an ancient practice has been bubbling up lately, with the implication that we cannot tamper with a practice so firmly ensconced in our legal tradition. While the importance of liberty before trial is part of our legal heritage and values, the differences between how bail was practiced in the past and the practice we have now are worth noting. 

Without getting too deeply into British legal history (look up wergeld and frankpledge if you have a hankering for more knowledge, or read Tim Schnacke’s excellent “Model” Bail Laws: Re-Drawing the Line Between Pretrial Release and Detention), we can say this: While bail has in many circles become synonymous with money, history shows that the imperative legacy of bail is its function as a means of release. The dominant form of release in early English history was essentially a personal surety system, where a person—the surety—agreed to take responsibility over defendants. The surety in this case was not allowed to profit from this arrangement, nor was the surety even allowed to accept a promise of reimbursement in the event that the accused defaulted on the payment—i.e., indemnification. (more…)

 

Earlier this month, an Alabama judge signed an administrative order that effectively eliminated the use of secured bail in his county. Presiding Circuit Judge Jerry Selman’s order also requires Walker County courts to conduct initial appearance and indigency hearings within forty-eight hours of arrest. Judge Selman’s order demonstrates two key ways that jurisdictions are moving to improve their pretrial justice practices. 

First, the Walker County order appears to be driven by a desire to avoid litigation. A similar order was signed last year in neighboring Jefferson County after the ACLU and others threatened to sue the county over money-based detention of unconvicted people. One news report states that “In at least one case involving Walker County, plaintiffs have come forward stating that they were held in violation of their constitutional rights.” (more…)

 

Litigation has been a successful strategy in challenging longstanding money bail practices across the country. In just a few years groups like Civil Rights Corps and Equal Justice Under Law have changed the pretrial legal landscape, resulting in more equitable treatment of arrested individuals.

The for-profit bail industry has been active in fighting these cases and has now put its weight (and money) behind two legal challenges against recent pretrial system improvements in New Jersey and New Mexico. 

We recommend you read the complaints (linked here and here) and assess each case for yourself. Before you make up your mind about the merits of these cases, however, we’d like to add some context. Both hinge on two key notions. The first is the “option of bail”—defined by bail industry proponents as the option to pay a financial bond for one’s pretrial release. The second notion concerns the imposition of “pre-arraignment restraints”—characterized in the complaints as release conditions, such as home detention or electronic monitoring, that seek to limit the movement of certain individuals as they await trial in the community. (more…)

 

A lot of folks are talking about “risk assessment” these days. And that’s good. But it’s important that everyone is clear about what it means (and doesn’t mean) when we use this term. At PJI, risk assessment is almost always accompanied by a handful of other words: pretrial, evidence-based, and actuarial. Here’s why:

Pretrial—The criminal justice system uses risk assessment at different times for a variety of purposes—including decisions about sentencing, incarceration security levels, and conditions for post-adjudication supervision. Needs assessments are a completely separate evaluation done to determine whether an individual might benefit from supports such as substance use or behavioral health treatment—which is important when crafting a good support structure for adjudicated people who may benefit from treatment. Among all of the points at which risk is being assessed, pretrial risk stands out because it focuses on measuring only two specific behaviors—court appearance and rearrest—during a specific time frame—between arrest and trial. As such, the factors used to determine pretrial risk level (e.g., prior convictions) and the comparison cases (similar people released before trial in the recent past) are far more limited than those used in other risk assessments. This makes pretrial tools and their results much more accurate. (more…)

 

By Cherise Fanno Burdeen, chief executive officer

Last week, U.S. Senators Kamala Harris and Rand Paul introduced SB 1539, the Pretrial Integrity and Safety Act of 2017, which encourages states to move away from money bond and ensure they are using legal and evidence-based pretrial justice practices. We were delighted to have been able to support the drafters of this bill and to work with partner organizations to gather up support. This is a bipartisan effort, sponsored by two senators with pretrial justice wins at home—California is poised to pass sweeping legislation (Assembly Bill 42 and Senate Bill 10) and Kentucky was the first state to deploy the Arnold Foundation’s Public Safety Assessment statewide.

Why does it matter if Congress weighs in on bail reform? Isn’t bail a state and local function? (more…)

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