November 2018 Bar Bulletin
By Jeffrey J. Clayton
Bail reform has always been a controversial subject, typically associated with arguments about rich versus poor people, and how far should the presumption of innocence go when it comes to persons charged with violent crimes.
California’s legislature recently passed Senate Bill 10 regarding bail reform, which was signed into law days later by Gov. Jerry Brown. It replaces California’s current bail system with a no-money bail system similar to that used in Washington, D.C. A defendant will either be detained with no bail, or released on recognizance with or without pre-conviction probation and supervision. The decision to detain or release is based on the use of a risk assessment algorithm, which will sort people into three categories: low-, medium- or high-risk. Low-risk — you go home; medium-risk — you are supervised; high-risk — you get pretrial detention with no bail. The legislation leaves it to the California Judicial Council to figure out how to do the sorting, and what algorithm or algorithms to use.
California mangled the entire process in a case of classic political mismanagement, which included the extremely hurried vote on the Senate floor, which caught even political veterans off guard. What can Washington learn from the bunglings of the Golden State? First, Washington, like California, is a right-to-bail state. Historically, many states expanded the scope of law beyond the mere federal prohibition against excessive bail. Washington is one such case, in which all persons were deemed bailable by “sufficient sureties,” except in cases where they may be facing a life sentence.
As for the meaning of “sufficient sureties,” that has always meant setting a dollar amount when a person is not otherwise released on his or her own recognizance. How that dollar amount has been satisfied has changed over time, with the first legitimate, for-profit bail indemnity companies opening their doors in San Francisco in the late 1800s. By 1912, in the case of Leary v. United States, the U.S. Supreme Court would depart from English law and bless the system of indemnity contracts for bail, with Justice Oliver Wendell Holmes, Jr., calling the distinction between a personal surety and indemnitor “mundium.”1
With that in mind, the first lesson Washington can learn from California is that if the goal is to ditch bail altogether and go to a no-money bail system, the state constitution must be changed in order to accomplish that. Specifically, the right to bail must be eliminated in favor of giving the state the power of general preventative detention — that is, detention without bail.
In its implementation report, the California Judicial Council noted that Senate Bill 10 was just like the systems recently introduced in New Jersey and New Mexico. Yet, it failed to mention that both states had to change their constitutions to put into effect what Senate Bill 10 promised to achieve. In fact, the bill conflicts with the limits set forth in many categories of the California Constitution. Some legal experts have concluded that California erred in putting the constitutional cart before the horse — and for that reason the entire scheme will inevitably be struck down. Washington would be wise to avoid making that same mistake.
The Pandora’s Box of preventative detention is another problem that California never thought through clearly. Because it ramrodded Senate Bill 10 through in only a few days, there was never time for proper discussion. Indeed, dipping one’s toe into the waters of preventative detention must be done with the utmost care.
Preventative detention has very stringent procedural safeguards. The two most critical are: (1) that no one remains in jail until a prosecutor has the opportunity to file a motion to prove by clear and convincing evidence that a person is a danger or a flight risk; and (2) that all such persons must be tried, at least under federal statute, within 90 days. These requirements put an extreme burden on the criminal justice system, requiring new public defenders, judges and prosecutors. For private defense counsel, this means charging their clients for a hearing to get out of jail and to try bail cases long before they get to the underlying facts in the cases. This not only puts a strain on private attorneys, it effectively puts them out of financial reach of many defendants.
At the end of the day, due process is a limited resource, one that serves us best when it is applied to the most critical parts of criminal justice, such as trials and sentencing — not on bail. This is why we saw two other states — Delaware and Idaho — undertake serious and lengthy deliberations on changing their state constitutions, which resulted in rejecting these moves. Further, history has proven over a generation that preventative detention policies do not reduce crime, and, in fact, detain too many persons pending trial. The federal system has nearly tripled pretrial incarceration since the passage of the Bail Reform Act of 1984. In New Jersey, motions are now filed for a detention in a majority of cases in which a person is arrested and brought to jail.
During the debate prior to the passage of the landmark Bail Reform Act, noted civil rights professor Daniel Freed warned Congress this would happen. He stated that it would open the door to the state condemning an individual as dangerous and likely to flee. Essentially, it would permanently label them without a criminal trial, while providing no means by which they could ever be exonerated. In the mid-1980s, the best article on this topic was “Preventative Detention: A Constitutional But Ineffective Means of Controlling Pretrial Crime,” authored by constitutional lawyer Scott D. Himsel. Two key concepts are described that have not changed since:
(1) we are unable to predict to any degree of scientific certainty who is going to fail to appear and commit a new crime. Instead, we are left with grouping people into numerical categories with arbitrary tolerances; and
(2) because of our inability to make accurate predictions as to specific individuals, we will over-detain many more persons than necessary in order to detain the person who would commit a new crime or fail to appear.
The case of United States v. Salerno upheld the federal preventative detention statute and allowed for the reforms subsequently implemented in New Jersey and New Mexico to be considered constitutional. In his dissenting opinion, Justice Thurgood Marshall declared that only police states have the power to detain with no bail and that, “The ease with which the conclusion is reached suggests the worthlessness of the achievement.”
Washington should be careful to avoid the trap of the preventative detention door. As professor Freed asked Congress in 1981, what is it we know today that the drafters of the U.S. Constitution and the Judiciary Act of 1789 didn’t know then? Expanding the use of preventative detention was a key pivot in the bail reform debate in California and, at last, put the evils of preventative detention on trial on a national stage. The amended version of Senate Bill 10 drew the immediate ire of civil rights groups, 55 of which opposed the final legislation, including the ACLU of California. Since then, the bail industry and civil rights groups have raised eyebrows for their unusual coalition resulting from their joint opposition to preventative detention policies and Senate Bill 10. Yet, no one can look seriously at what has happened in Washington, D.C., the federal system or New Jersey, and claim that a system of risk-based, preventative detention is the answer and is somehow fairer. This is glaringly obvious when one looks at the first factor most risk assessments evaluate: age at first arrest. In fact, the ACLU opposed these policies a generation ago, which should serve as a reminder that only time changes, but arguments remain the same. Certainly, few would debate that the current presidential administration should have the power to lock up anyone it wants without bail.
The second key point is that the promise of risk assessment algorithms has fallen by the wayside. The disintegration of the so-called third generation of bail reform was inevitable and has finally landed with a sickening thud. For those who are law-enforcement minded, the concern has always been that risk assessment algorithms get it wrong and that someone will get out who would not otherwise have been released and go harm someone. These cases have never been difficult to find, with one pretrial risk assessment in particular becoming infamous for determining prior felons in possession of a firearm as low risk.
In the spirit of greater pretrial liberty, this summer 115 national civil rights groups, including the ACLU and NAACP, recommended that jurisdictions no longer use pretrial risk assessment algorithms, due to concerns of trammeling constitutional rights and concerns of racial disparities. Combined with numerous scholarly articles recently published about the many problems with algorithms, we are seeing a tidal wave of sentiment rising against the generational use of these tools.
One critic, Robert Werth, a professor at Rice University, suggested that risk assessment did nothing to diminish the expansion of incarceration and massive increase of the use of probation and parole in this country. In fact, evidence shows that such algorithms actually fortify the system. In the process, risk assessment perpetuates itself by dehumanizing people into risk categories from which they may never escape and creates penal responses premised on this information. These actions systematically ratchet up after each offense, regardless of guilt or innocence.
In light of the aforementioned seismic shift in thinking, one would have thought that the California legislature would have paused to evaluate the algorithm issue. Instead, it relentlessly steamed forward, delegating power to the judicial branch to make rules as to what algorithms could be used and how they were to be regulated. This created a huge problem, because if someone now wishes to challenge the validity, regulation or use of an algorithm (or offer evidence that it discriminates), that litigant will be tasked with suing the very branch of government that embraced the algorithm regulatory process in the first place.
In addition, it is clear that the algorithms will embrace substantive law. The regulators of such algorithms will have to decide the substantive risk tolerances: low, and you go home; medium, we supervise and electronically incarcerate; high, you immediately go back to jail and are not released. Those who are proponents of algorithms and the results they provide should be tasked with defending them. That should not be the role of the judicial branch of government. Further, the 115 civil rights groups who turned their backs on risk assessment subsequently noted a series of concerns that demanded to be addressed if a jurisdiction were to use a pretrial algorithm. Many of the supporters of Senate Bill 10 simply ignored them.
Tim Schnake, a self-proclaimed bail reformist, named this last, roughly 10-year period of bail reform as the “Third Generation of Bail Reform” in America. He has continued in his attempts to breathe life into what was presumably the “Second Generation of Bail Reform,” arguing for a risk-based system that has not worked over a generation in the federal system, and is proving extremely costly to states that attempt to implement it.
It should be abundantly clear to anyone who knows law that California’s Senate Bill 10 is unconstitutional, and will never see the light of day, nor should it. There is also a drive to put the issue before the voters, which is likely to succeed, and will delay the process several more years. Hopefully, California will be the last large jurisdiction to attempt the risk-based, no-money bail system, with a growing number of former advocates now concluding that what they previously supported, simply and fundamentally, does not add up. Further clarifying their reassessment is the stark reality of the billion-dollar price tag that will pad the rolls of the government and do nothing to stop the cycle of poverty, incarceration and supervision that drove this misguided endeavor from the outset.
The bail industry has been criticized and vilified, but the reality is the public is discovering that calling a bail agent is much easier than facing an evaluation by an unmotivated computer and government bureaucrat — and then facing supervision by another government bureaucrat, which includes electronic incarceration and other severe liberty-restricting release conditions.
Bail agents and underwriters have an economic incentive to make certain people are released — and released quickly. This serves as an appetite suppressant for the government’s usual hunger for incarceration. In Maryland, judges chose detention rather than free-bail alternatives, spiking the pretrial population in Baltimore by more than 20 percent in the first year of bail reform. Not having the option of bail, indeed, leads to more jail time.
Over the last 10 years, we have learned once again that America’s system of justice cannot be based on creating a greater governmental incentive for detention by computer algorithm. California is about to learn that lesson, too.
Editor’s Note: See also “No-Money Bail Movement Fails To Deliver on Promises,” KCBA Bar Bulletin, December 2017, available at: http://www.kcba.org/For-Lawyers/Bar-Bulletin/PostId/293/no-money-bail-movement-fails-to-deliver-on-promises.
Jeffrey Clayton is the executive director of the American Bail Coalition. He has worked in various capacities as a public policy and government relations professional for 15 years, and also as a licensed attorney for the past 12 years. Most recently, he worked as the general counsel for the Professional Bail Agents of Colorado, in addition to serving other clients in legal, legislative, and policy matters. Clayton holds a B.B.A. from Baylor University, an M.S. (Public Policy) from the University of Rochester, N.Y., and a J.D. from the Sturm College of Law, University of Denver.
1 “In old French law, a tribute paid by a church or monastery to their seignorial avoués and vidames, as the price for protecting them.” Black’s Law Dictionary at 1017 (6th ed., West 1990).