“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.”
Please click here to read the full article.
This paper will focus on pretrial release and how it relates to contemporary crime control and prevention in Connecticut. It has been a hotly contested subject, which has had much political and media discussion over the past several years on both a national and local level. Our own governor has made judicial reform one of his primary initiatives and usually refers to it as Second Chance in his proposed legislation and policies. Interesting that it’s seldom mentioned and seeming not even a consideration in any of the judicial reform propositions of how these changes will affect victims (a discussion for another paper), crime control and prevention. The proponents of this bail reform usually refer the issue of indigent, minorities or a combination of the two being stuck in jail simply for the fact they do not have money. This is a blatantly liberal agenda which even found its way into our textbook. What was found to be true is that regardless of their social stature or ethnicity, they were habitual criminals 77% of which have 3 or more prior convictions.
Pretrial release occurs when a defendant is released from jail while the criminal case is pending, sometimes on a bond. A bond is a contract where a defendant pays to get out of jail. There are 5 types of bond release methods in Connecticut:
1) Promise to Appear(PTA) the defendant is released on their own recognizance and is the most common method in Connecticut.
2) Non-surety a denomination put on the release allowing the court or police department to call it a bond. However, no money is paid or collected upon forfeiture effectively making a non-surety a PTA.
3) Cash or Surety a bond amount is specified and the defendant must post the money or sufficient surety (aka bondsman).
4) Cash only a bond amount is specified and must be posted in full and in cash. This is the most restrictive bond type and is often “mis-used”. It was eliminated from CT law in July of 2017 but some judges continue to use it.
5) 10% Cash Option a bond amount is specified but 10% is paid directly to the court.
Connecticut also has many diversionary programs: Accelerated Rehabilitation (AR), Alcohol Education Program, Drug Education Program, Community Service Labor Program, Treatment of Drug and Alcohol Dependent Offenders in Lieu of Prosecution, Family Violence Program, Mediation/family Relations Office, Alternative Incarceration Program (AIC), Youthful Offender Program, School Violence Prevention Program and various test programs. Some states as well as Connecticut considered to enact reform following the federal system a combined method of PTAs and preventive detention which our text seems to be in support of. Ultimately, it was determined that CT already having many forms of pretrial release, has resulted in a combination of methods that have resulted in the gold standard of the country statistically.
Now that we have had a brief introduction to pretrial in CT, you must be wondering, what is the correlation between pretrial and crime control/prevention? I’m not so sure it has any effect on control depending on the definition used, but does regarding prevention for the short-term. Even preventive detention had little effect on crime control because very few defendants truly absconded or reoffended while out on bail. This is old national data and seems a bit counter intuitive to me but seems to be true. Connecticut also had a study regarding reoffending. The study found that of the 16,286 people released from state prisons in 2005, nearly 64 percent were arrested again by 2008. It also demonstrated that CT performs much better than 75% national average for recidivism for less than 3 years. Unfortunately, the study fell short of examining defendants on pretrial release. Anecdotally, I can tell you it’s a very small percentage of clients released on surety bail that reoffend which is in line with the BOJ study mentioned previously. I have a FOIR request pending but it will most likely not have the information in time for the report.
There is an argument that some forms of pretrial release effect the prevention of crime. This will vary depending on the types of crimes the accused is charged with, of course. For example; A drug addict will be significantly more likely to reoffend than a drug dealer, in my experience. Using 2008-2010 data from a national study, we find 19% of defendants released pretrial, committed some form of pretrial misconduct which could be a violation of some type of condition. Technical violations were committed by 17% of defendants released prior to case disposition, while 1% of released defendants failed to make court appearances and 4% were rearrested for new offenses. 4% stands in stark contrast to the 64% that reoffend within 3 years, in Connecticut. Admittedly there are many factors and caveats that must be taken into consideration when looking at post and pretrial statistics.
The premise of innocent until proven guilty and limited excessive bail is a fundamental part of United States jurisprudence, so much so, that our forefathers created the 8th Amendment which directly speaks to pretrial release known as bail at the time. When a defendant is released on any form of pretrial release, they are given the opportunity to prove themselves innocent or at least prove their worth to society. Giving them a chance to demonstrate why they deserve leniency if acquittal or a nolle is not possible. This must weigh heavily on those who have the cognizance of it and desire to have a good outcome for their case. For some defendants, just being told they need to show up to court is enough, but others more motivation is needed.
The oldest and most effective form, pretrial release, is when you have to post a bond specifically with a bondsman. The accused will have money on the line in addition to collateral provided, and family or friends will have cosigned making them liable for the defendants actions. This adds a significant motivational factor which is an ancient practice, but it works when done properly. In Connecticut, 8% of the defendants with felony charges released on Surety Bonds failed to appear versus 11% release on PTAs. When taken into consideration, \ only the highest risk defendants are given monetary bonds and very few reoffend, the effectiveness of bail can not ignored. I believe bail does have some ability to prevent crime by imposing accountability albeit a short time.
Oddly, when I attempted to find out information regarding the performance regarding the pretrial programs “Connecticut has invested so heavily in”, they were not available. After some investigation I found out that this data is conveniently not recorded for the programs. The programs simply record the number of defendants that successfully complete them, and those who reoffend of FTA are simply not included. It seems to me some of the alternative to bail forms of pretrial be in violation of the 8th Amendment and I suspect their performance is not so great… but I’ll have to leave that discussion for a different day.
The proponents of the Federal system will argue the combination of PTAs and Preventative Detention is the best choice based on the Thomas H. Cohen, J.D., Ph.D., Bureau of Justice Statistics study cited earlier in this paper. Unfortunately, I don’t have the Connecticut numbers to prove otherwise, yet, but we have outperformed the Federal system on every measurement of pretrial release deemed favorable to the defendant, and I’m not certain CT will out perform in recidivism during pretrial. What the reformers fail to acknowledge is the Federal system only releases 32% of the defendants on pretrial during the term of the study, meeting an astounding 68% held for the pendency of their case compared to the 7% held in Connecticut. Why such a difference? I speculate that when a judge or prosecutor has to recommend a PTA or Pretrial Detention, they will air on the side of detention if there is any hint of risk at all.
In closing, pretrial for a short time in some forms can prevent crime. However the reason it works has nothing to do with changing the disposition of the criminal. It has to do with imposing consequences and their own innate self-preservation. My theory obviously needs more support, but when taking into consideration that defendants compliance while on parole and probation are similar to that of defendants on bond for the first year, seems to support it.
With great sadness, we inform you that Delaware has gone the way of New Jersey. Click here to read the latest update.
Bail has been lost in another East Coast state which is quickly becoming a stronghold for the proponents of bail reform. Unfortunately, this loss is very reminiscent to other states that have lost. Too few bail agents participate in the fight – both money and minds are needed to prevail. Please do not allow this to happen in Connecticut. We need you to join, volunteer and contribute to the BAC or we certainly will suffer the same fate. Please click here to get your membership today!
Our industry’s opponents are well funded, well positioned and very organized. Fortunately for bail, we have truth and the Constitution on our side. This is not just a fight for our jobs, it is a fight to preserve American jurisprudence and prevent them from furthering the socialist agenda.