BailCo participated in a life-sized Monopoly game hosted by the Possum Queen Foundation at Saltwater Grille in Litchfield. Naturally, we were the get out of jail free card! Here’s a few photos from the event:
During the last decade, most states across the country have enacted laws or policies which share common themes regarding victims of crime and pre-trial release. The belief is that victims have a right to “reasonable” protection from the defendant by imposing bail and/or conditions of release by the court, police department or bail commissioner. Every states provides rights through laws for services to victims. Many states have attempted to address the complicated issue of victim interests related to pretrial release. Victims’ rights laws in California, Delaware, Illinois, Louisiana, Mississippi, Missouri, Oklahoma, Oregon and Texas are distinct because they specifically direct judges to consider the safety of victims when determining conditions of pretrial release. We have laws in Connecticut that address various victim-specific rights and protections at the pretrial stage and during the pendency of the case that have a similar intention. The topic of my paper is the pre-trial process in Connecticut and the rights of the victim during that process.
When arrested, the defendant is processed at the police department commonly referred to as booking. At this time it is determined by the arresting authority if the defendant will be held on bond or released. If the defendant has a moderate criminal history and the crime is considered not to be severe in nature the defendant will be released on a Promise to Appear (PTA) or a Non-Surety Bond (which is essentially a PTA with a denomination). Defendants with serious accusations or criminal history may have a cash or a surety bond. In these cases they may post the cash amount of the bond or hire a bondsman to post it, securing their release. The purpose of the bond is to insure the defendant’s appearance in court. Regardless of method of release the process of protecting the victim begins with imposing conditions of release, which include temporary protection orders. Granted these are only pieces of paper but it does threaten additional arrest and charges if the order is violated. In the case the defendant does not post bond they a brought to the next available court date for an arraignment.
Post arrest, the first appearance the accused has in court is called an arraignment. This begins a series of events required by our judicial process that must occur prior to the final disposition of the case. Ultimately, the defendant may go to trial, may plead guilty or may agree to plead guilty if the charges are reduced or a lesser offense with lighter consequences is offered. In rare cases the court may decide that the defendant is mentally ill or mentally disabled and does not have the ability to understand legal proceedings and, as a result, cannot be tried.
At the arraignment a risk assessment is conducted by the bail commissioner’s office a part of Court Support Services. The judge will consider all of the facts and circumstances presented to them by the states attorney, defence attorney and bail commissioner. Based off of that information the judge will determine the type of pretrial release is the least restrictive but assures appearance along with the conditions of release. Often in domestic related offences they impose a restraining order which vary in degree and in more violent cases GPS. Commonly known as electronic monitoring the intent of the technology is to warn the victim if the defendant is within a specified distance can be ordered for a violation of a restraining or protection order when the defendant is determined to be high-risk. Electronic monitoring can also be ordered for class D felonies or misdemeanors except: 3rd and 4th degree sex assault; 1st degree stalking; 2nd degree assault involving a firearm or motor vehicle; and where the victim is elderly, blind, disabled, pregnant or has an intellectual disability. Unfortunately the real world application of this technology has not worked out as planned. The only thing protecting the victims at this point are threats of additional charges if release conditions are violated.
Once the pretrial release method has been determined the defendant is either released, posts bond or held in a correctional center for the pendency of their case. The hearings before the trial are called pre-trial. In Connecticut, the majority of cases are resolved during the pre-trial process. The typical resolutions are as follows:
There are numerous pre-trial hearings in most cases. This gives the states attorney, defense attorney, victims advocate and judge a chance to discuss options of resolving the case before trial. As I mentioned before most cases find a resolution during this period.
Plea negotiations have become necessary part of the process for a variety of reasons. Most of which have nothing to do with the rights of the accused or victims. It is about speed because the court is overrun with cases and a plea negotiation is the fastest way to resolve the matter. irst, cases end much faster if they are successfully plea bargained. It’s a great way to clean up a congested court docket. Trials are very time-consuming and expensive for both the state and the defense. Most defendants could not afford a trial ( and many would not win it anyway). Our judicial system costs nearly 3/4 of a billion dollars a year and processes approximately 150,000 custodial arrests annually. The volume and cost are the overwhelming reason the vast majority of criminal cases end with a plea bargain.
The factors that are considered by the prosecution when negotiating a plea bargain with the criminal defense attorney are:
Plea negotiations have become a intrical part of the process and are here to stay. A plea bargain before trial can be a guarantee that a defendant will have some consequences for the crime. It can save victims and witnesses the discomfort of testifying in court. Perhaps the largest benefit, is the case is goes through the process much faster which means defendants are “punished” and victims can get on with their lives.
The judge has the final say on any plea agreement. However, the victim has a legal right to be heard by the judge regarding whether or not the plea agreement should be accepted or rejected by the court. There is little to no documentation on what effect this has on the judges ultimate decision. A first time offender is all but guaranteed acceptance into a program in Connecticut. It is not uncommon for defendants with multiple offenses and a criminal history being given several “second chances”. Usually these programs come at the cost of the victim, limiting the consequences and possibility of restitution.
In Connecticut, crime victims have various rights but they need to fill out a form called Notice of Intent to Exercise Crime Victim Rights with the Office of Victims Advocates. Once submitted crime victims have the right to be notified of the date, time and place of the court proceeding at which the court will decide whether to accept or reject any plea agreement reached between the state and the defendant. The state’s attorney can add some challenges to the process by making the victim provide postage etc. A crime victim also has the right to receive from the prosecutor the terms and conditions of any plea agreement reached between the state and the defendant prior to the plea hearing but no mention of their ability to influence that agreement. Again the onus is on crime victim is required to request to receive such information from the prosecutor in “writing.”
In typical Connecticut fashion, nothing can be simple and the victim must know their right to attend and to be heard at the plea hearing is separate from the right to attend and to be heard by the court regarding the sentencing of the defendant. You have the right to attend and be heard at both proceedings but its not clear if another form is needed.
The pre-trial hearings can go on for a very long time, in some cases years. This is usually predicated on the severity and complexity of the case. Defendants that have a competent attorney may have one or more pre-trial hearings on a variety of constitutional questions regarding evidence, witnesses and confessions etc. These issues are usually presented to the court through a formal request called a motion. A hearing will be scheduled at a future date for a oral argument before the judge. The judge will the grant of deny the motion. These pre-trial motions are filed by the defendant and/or the State and must be done for rulings from the judge on specific legal issues. Both sides argue their cases for or against the motions that have been submitted to the court. Examples of pretrial motions are motions to keep evidence out of the trial, substitution of a judge, change of venue, or appointment of expert witnesses. A motion may also be filed for a bond reduction if the defendant is still held in custody.
Discovery is also conducted during the pretrial phase. The purpose of discovery is obtain information that is held by the other party. During this phase the judge may hold hearings to determine whether certain evidence will be admitted or suppressed at the defendant’s trial; whether there is a legal reason why the defendant should not be tried at all; or decide rules for trial.
It is common to have numerous requests for a continuance made by the defendant’s counsel and the state’s attorney in order to engage in pre-trial necessities. These include, conducting further investigations; interviewing witnesses; testing and/or analyzing evidence; reviewing discovery materials; retaining, interviewing and preparing expert witnesses; filing a variety of motions with the court; making application for a diversionary program; and negotiating the plea agreement. However, continuances are a common source of delay in the courts. It’s not uncommon for the granting of continuances requests. This often means a delay of a year or more before the case actually comes to trial.
One of the victim’s rights in Connecticut is a timely disposition of the case. Frivolous continuances can certainly violate this right. There is some confusion as to what this actually means a victim can do and the defendants rights vs the victim. This is a ever present issue in victimology. There is a form for a victim to be heard by court called a Motion for Notification and Opportunity to be Heard Regarding Requests for Continuance of a crime. Connecticut’s Office of the Victim Advocate contends that this right is inclusive of the right to be heard with respect to the granting of continuances in criminal cases.
At the culmination of all of these legal proceedings the parties either reach an agreement through plea bargaining and the defendant will not go to trial. If there is no agreement the case will be put on the trial list. The actual trial can take months to occur. During that entire time the defendant must follow all of their conditions of release, any misstep such as violation of the protective order could result in incarceration and addition criminal charges.
Public Act: 12-133 AN ACT CONCERNING COURT OPERATIONS AND VICTIM SERVICES
Public Act: 16-34 AN ACT PROTECTING VICTIMS OF DOMESTIC VIOLENCE
Public Act: 17-99 AN ACT CONCERNING COURT OPERATIONS, VICTIM SERVICES, FRAUDULENT FILINGS AND TRANSFERS OF AN INTEREST IN REAL PROPERTY TO A TRUST.
Connecticut Practice Book: Chapter 38 Pretrial Release
“The Fifth Circuit affirmed in part and reversed in part Judge Rosenthal’s decision. This decision, we would point out, is consistent with what we have been saying all along—a bail schedule is constitutional if the procedures for review of a bail were adequate, meaning there was a timely and meaningful opportunity to be heard, including as to indigency. The Court held that “bail is not purely defined by what the detainee can afford,” which is a win against any legal theory that says affordability can be the determining factor. Thus, bail is not ever per se unconstitutional because someone cannot afford it.”Read the full article here.
I am the President of the Bail Association of Connecticut (BAC). I am here to provide testimony with regard to the potential legislative proposal related to a proposed Constitutional Amendment on Pretrial Release and Detention.
Our association was established in 2008 and represents the 95 small businesses employing over 1,000 Connecticut residents. Our membership includes, Surety Bail Agents licensed by the Department of Insurance, Professional Bail Agents & Bail Enforcement Agents licensed by the Department of Emergency Services and Public Protection, Insurance Company Representatives and Surety Bail Companies and their employees.
This proposed potential legislative proposal is yet another attempt to rehash issues previously identified by Governor Malloy in his November 5, 2015 letter to the Sentencing Commission requesting examination of Connecticut’s current bail bond system and the possibility for its reform. These issues have been studied and addressed during the last two sessions extensively and we do not believe that the data examined during this period demonstrates the need to further explore the proposed potential legislative item.
It is important to note, that the BAC appreciates the concerns raised by the governor and those of the Sentencing Commission and its Pretrial Release & Detention Advisory Group and have appreciated the opportunity to work with you during you previous study. We welcome the opportunity to continue to do so and stand ready as to assist in ensuring that non-violent, low level offenders are not held behind bars simply because they cannot afford to post bail.
However, we believe and have proven unquestionably through thorough review of the available state data, comparison of our state’s current system to many others, and independent research conducted by the BAC, that rather than pursuing changes within the state’s Constitution, state statute and judicial practice, that the Sentencing Commission should seek to supplement our current system to assist the few identified arrestees that cannot secure pre-trial release. Specifically, we welcome the opportunity to study such assistance programs as the recently enacted PA 17-145 directed the commission to do in consultation with the Office of Policy and Management and our association.
Through our research and examination of available state data, we discovered and previously shared with the commission, that our current system of pretrial release could be considered one of the best in the country. Connecticut currently has a hybrid pretrial release system, already incorporating renditions of all forms of release currently available. We have a very low rate of failures to appear (FTA) compared to the national average of 18%, whereas Connecticut’s average is between 8% and 13%.
Connecticut citizens accused of crimes are given multiple second chances and each arrestee has a minimum of four different authorities review their case in an effort to use the least restrictive form of release possible. Additionally, arrestees have opportunities for their bond to be modified after arraignment.
Data collected on April 1, 2016 from the Department of Correction and Judicial Branch websites, demonstrates that there are not a large amount of non-violent, low level offenders being incarcerated at high levels due to their ability to post bail after you consider their criminal records.
This proposed potential legislative proposal to amend the Constitution is completely unnecessary and unwarranted considering the data previously examined by the commission. It also raises significant issues regarding the 8th Amendment and the very fabric of our nation. States which have enacted similar amendments are now in multiple lawsuits. Further it would create a system like Washington D.C. that holds 111% more pre-trial defendants then Connecticut’s current system – which again is among the best performing in the nation. Finally, it could also possibly have an immense financial impact similar to the other states that have instituted similar amendments.
Ultimately, the logic behind this type of change truly needs reconsideration. It is pitting different groups of people against one another under the guise of equality. Connecticut has a very robust pretrial justice system which comes at a cost of hundreds of millions of dollars. We suggest that a review of the many programs available be conducted before such an aggressive legislative proposal is pursued. Such a study could result in findings of more effective programs for defendants and possible savings to the state’s taxpayers.
In closing, if what the state is arresting people for is causing the underlying, unfair issues for some then perhaps it is unfair for all arrested and the commission should review and propose changes to the law or criminal procedure for reform.
I thank you for the opportunity to testify before you today, I welcome any questions that you may have and our association stands ready to continue to work with the commission.
Connecticut has become a sanctuary state for many types of criminals allowing many to continuously reoffend and in some cases, provide de facto nolles on criminals that leave the state. Yes, it’s true you can be charged with a crime in Connecticut, flee to another state, never have to answer for those crimes, and it is not just the low-level offenders. This has become an increasingly common practice as the criminal community learns of this failure to deliver justice in the judicial system. Unfortunately for the citizens /victims, the state has given them some excellent tools to repeat offenders and those that wish to abscond. In part, it is because of certain types of pretrial release called the PTAs, Non Surety, and 10% Option. In addition, the state is reluctant to extradite, enter warrants NCIC, plea-bargains, early release etc. We might as well put a sign on 95 inviting criminals to do their crimes here. Prosecutions are low and the taxes on their earnings are even lower.
Please do not confuse this with a criticism or any specific individual or job. Many in Law Enforcement and judicial employees are doing their job exceptionally well, but their tools to do the job have been dulled. This is happening for the age-old reasons of money and politics. It costs a colossal amount of money to fund the system (CJD: 524 Million, DOC: 624 Million) and that is not even adding in the 92 municipal police departments and State Police.
The political issues are more complex. Politicians like to make laws, many of which are not needed, and seldom remove laws creating more of a burden on the system resulting in some laws not being enforced and some being over enforced. There are also political movements that impede the system. One movement I’m intimately familiar with is Bail Reform, which encompasses a belief that indigent minorities are languishing in jail for the lack of a few bucks to post bail. Prison overcrowding; we do not have the space to keep all of the people we convict and can’t afford to keep facilities open, nevermind build more. Plus you can not ignore the change in how we handle those with addiction and mental afflictions, which has turned into a catch and release which will never end.
To understand how this occurs you must know a few things about criminal procedure in Connecticut. When charged with a crime, the defendant is either released on a Promise to Appear(PTA) or one of several types of bail. Bail allows the accused to post a bond. The type and amount of the bond is determined by a judge, bail commissioner or police officer, or perhaps all three depending on which stage of the judicial process the defendant is in. Reasonable bail is a right given to us all and is in the 8th Amendment; the shortest and perhaps most overlooked Amendment we have. However, without the protection of the 8th Amendment many abuses can take place.
PTAs and Non-surety bonds are the most common type of release because it’s the least restrictive, totaling 84,505 of the 143,816 custodial arrests in 2016. These types of releases where once intended to be used for low-level offenders with little criminal history, but that has changed. It now includes offenders with significant history. The 10% Option is one type of bail that can be ordered by a judge. It is commonly used by the more liberal judges that have been indoctrinated into the “Bail Reform Agenda”. The premise of the argument for 10% is that it will allow the defendants to receive their 10% back once they have a disposition in their case. However, like many of the Bail Reform concepts, it has major issues in practice.
The prolific use of PTAs has resulted in a large number of reoffenders and Failure to Appears, totaling 70% of the 2016 forfeitures, many of which are still open today resulting in a change in the mindset of the criminal population. They have learned that they can reoffend with little to no consequence, so they flee the state with no issues. The 10% option is being used extensively in 2017, unfortunately it’s too early to obtain the reports. 10% has some majors flaws; Connecticut already had an option for the accused to post bail in cash and receive it back if all of their options are fulfilled. When a judge sets a cash or surety bond they have the choice of posting cash or surety. There is no need for the 10% option other than to directly attack the private bail industry. I believe it is also an attempt to deliver the results our industry provides. In addition, The 10% Options alleged intention is to provide a way for the “indigent” defendants to save some money. However, the reality is those defendants need payment plans which result in them using bondsman anyway. The only defendants that benefit from 10% are the ones that didn’t need it in the first place, giving those that have money a unique opportunity.
The more sophisticated defendants have realized that if you post the PTA, Non-surety or 10% Option, no cosigner is needed and the penal amount of the bond is never collected. You combine this with the fact that Connecticut seldom extradite (the process of bringing a defendant from one state to the other) and you have what amounts to the defendant purchasing his move out-of-state.
On a traditional bond, defendants have to provide collateral. This means they have some incentive to go to court because they run the risk of losing something. 10% Options do not do this, yet this is one of the reasons bail is so effective. The other reason is that the bondsman have the obligation to make sure the defendant shows up to court, which means if the accused absconds, the bondsman will find them, arrest them, and return them to Connecticut. PTA, Non-Surety and 10% simply can not do that. So why doesn’t the state try to collect the penal amount of the bond or send police officers to apprehend these defendants? Again, the biggest reason is MONEY and a healthy dose of politics.
CJD and DOC also have the additional issue of volume which results in plea-bargains and early release programs, which again diminish the consequences. The vast majority of cases never go to trial. In some courts it’s over 90%, which means defendants are put into special programs. Most of the programs are simply a feel good band-aid and do little to help the defendant, citizens of CT or the victims. Nearly 70% reoffend in less than 3 years. That is old nation data but I’m sure its the same or worse in CT proving these programs do very little (well, with the exception of spending precious tax dollars).
Law Enforcement being scrutinized at every move is perhaps justifiable in some cases, but that has resulted in a very bad anti-police mindset further exacerbating the problem. This is resulting in bad moral and lack of incentive to performance. Why enforce the law risk injury and scrutiny when the are little to no consequences for the defendants? Budgeting is always and issue and certainly worse when there is ill will.
In conclusion, I believe we need to face the reality that we simply do not have enough resources to uphold all of the laws. By having many laws we have essentially undermined the validity of the system. It’s time to take looks at what laws are important and how we enforce them then end the debate on what is fair or not fair. Create reasonable consequences and hold those that choose to violate accountable. The LE, judicial, taxpayers and victims are not getting the system they deserve.
“The study compared the crime-predicting powers of an algorithm called COMPAS, already used by multiple states, to those of Amazon’s Mechanical Turk, a sort of micro TaskRabbit where people are paid to complete small assignments. Using an online poll, the researcher asked “turks” to predict recidivism based on a few scant facts about offenders. Given the sex, age, crime charge, criminal degree, and prior convictions in juvenile, felony and misdemeanor courts of 50 offenders, each of the 400 survey takers had to assess their likelihood of reoffending. The Dartmouth researchers had information on whether the offenders in question actually did reoffend…”
“Overall, the turks predicted recidivism with 67 percent accuracy, compared to COMPAS’ 65 percent. Even without access to a defendant’s race, they also incorrectly predicted that black defendants would reoffend more often than they incorrectly predicted white defendants would reoffend, known as a false positive rate. That indicates that even when racial data isn’t available, certain data points—like number of convictions—can become proxies for race, a central issue with eradicating bias in these algorithms.”
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