Connecticut Legislature Set to “End Cash Bail” Similar to New York and Illinois Creating Bail Reform Chaos

On Wednesday, March 22^nd, the Connecticut Legislature’s Joint Judiciary Committee will hear H.J. 261, legislation that proposes an amendment to Connecticut’s constitution that will eliminate the right to bail by sufficient sureties and replace it with an unknown system of “pretrial release,” to be defined by the legislature at some unknown point later.

Read the bill > H.J. 261

“Ending cash bail” via this constitutional amendment means that no one, except who the legislature later defines as eligible for “preventative detention,” will be held in jail pending trial.  Today, people stay in jail because they fail to secure their release by posting the bail set by a judge.  Added to this, everyone for whom a prosecutor does not obtain detention will be released on a zero bail since there will no longer be bail by sufficient sureties.

The Connecticut Sentencing Commission is ultimately behind this recommendation.  In fact, the Sentencing Commission put out a list of what crimes they recommend a defendant may be retained in jail pending trial, presuming of course that a prosecutor first wins a mini-trial to determine detention.  There is every reason to believe this is the list the legislature will choose to adopt since it was provided in the report.  The list of detainable crimes that underpins this recommendation is buried deep on page 56 of the report.

View the Report here > 2022 Report on Pretrial Justice

This list of offenses recommended by the Sentencing Commission that may qualify for detention (referred to as those in the “detention eligibility net”) on page 56 of the report can be easily crossed referenced with those in the penal code of criminal offenses found here: Chapter 952, Penal Code Offenses.

Ok, go ahead print page 56 and the penal code offenses.  Now circle the crimes on the penal code for which a prosecutor may seek detention as contained on page 56 of the report.  Those offenses remaining on the list of criminal offenses where there is no circle will result in an automatic zero bail, no questions asked, regardless of prior convictions, public safety risk, or even if a defendant signs an affidavit informing the judge he will not appear ever and will flee.

These are not insignificant crimes for which there will never be pretrial detention in Connecticut pending trial.

Included but not limited in the Sentencing’s Commission’s get out of jail free list are…

Section 53a- crimes: (1) all misdemeanors; (2) 83b, felony enticement of a minor; (3) 122, felony larceny; (4) 129, felony identity theft crimes; (5) 138, Class C felony forgery; (6) 151, class C felony witness tampering; (7) 165a-167, felony hindering prosecution; (8) 169 and 170, felony escape from custody crimes; (9) 172, class D felony failing to appear in court; (10) 181b, intimidation based on bigotry or bias (hate crimes); (11) 196a, class A felony employing a minor in an obscene performance; (12) 196d, class B felony possession of child pornography; (13) 196i, class C felony commercial sexual exploitation of a minor; (14) 212, class C felony theft of a firearm; (15) 217b, class D felony illegal possession of a firearm on school grounds; (16) 223, class C or D felony violation of an order of protection; and, (17) 301, class B felony computer crimes in favor of terroristic purposes.

Thus, ending cash bail is also about ending detention for a wide variety of crimes altogether, like serious sexual offenses, firearms crimes, and hate crimes, as recommended by the Connecticut Sentencing Commission.   Of course, the legislature is free to tinker with the list, but it’s clear under federal law that preventative detention is not allowed when it comes to misdemeanors, and thus all misdemeanants will be released on a zero bail under this constitutional amendment regardless of what the legislature says or does.

The risk to public safety under this scheme is severe.

This is very similar to what happened New York, which has proven to be a disaster, reversing decades of successful crime control policies in a matter of years.  It also has the earmarks of the failed zero bail policies of California, which have proven to be a disaster.  In New York, the legislature thought it could better define than judges who should stay in and who should get out, only to find out that recidivists committing the same crimes repeatedly and never showing up for court benefitted from this arrangement of making the crime charged rather than circumstances of the defendant drive the result.  Here, in the proposed legislation of H.J. 261, we note a significant number of crimes for which there will be no bail, ever, depriving judges of discretion to set bail in appropriate cases.

Read More on New York: New Report Analyzes the Effects of New York’s 2019 Bail Reform

Read More on California: 70% of Those Released on $0 Bail Commit New Crimes

Not so, will say the proponents of a blank legislative bail check—we will get aggressive in allowing prosecutors to lock up a lot more people.  But, if you do that, then the entire point of the reform evaporates.

In New Jersey, the pretrial jail population is larger than when bail reform began because prosecutors now seek detention in 47% of all felonies, and of course the racial disparities of those awaiting trial in jail has not changed one bit since bail reform.  To add insult to injury, much of the $500 million price tag of New Jersey’s bail reform was borne by local governments, who claimed an unfunded mandate only to be told it was a constitutionally mandated unfunded local mandate, and in essence to eat it.  These claims are still being filed by local governments to this day.

Read more on New Jersey’s Unfunded Mandate: Middletown claims bail reform law is unfunded mandate imposed by state

The right to bail by sufficient sureties has governed bail in Connecticut and many states for decades – serving the public and victim’s interest all while providing accountable release for criminal defendants.  That is why states continue to reject the end cash bail model, including California (by the voters), Colorado, Ohio, Texas, and Washington State, to name a few.  That is why the ACLU resisted the federal preventative detention model in 1984, that has since taken pretrial detention rates in the federal system from 24% under the “cash bail system” to 75% in the “end money bail” system of preventative detention.

Based on the rationale and underlying details put forward for this legislation in terms of how it will be implemented, we can say for certain that it will wreak havoc on Connecticut’s system of public safety and criminal justice by creating a much smaller detention net under the new system than under the current system.

We also think the legislature is unlikely to fund the system as necessary make possible the hearings that will be needed, and thus create resource pressures, as in New Mexico, which will make it difficult for prosecutors to achieve detention in the cases where there is eligibility and they believe it to be appropriate.  And they will not win every case either.   Of course, we could also say the opposite is possible, that the Connecticut legislature will get aggressive and let prosecutors detain so many people that the jail population will increase like in New Jersey.  But there is no indication of that from a close review of the Sentencing Commission’s report—instead there is likely to be a small detention net with all suspects charged with crimes who are not detained getting out on zero bail, and thus no third-party financial incentive to return to court or bail agent with arrest powers to return them to court.

At the end of the day, Connecticut like the vast majority of states has gotten along quite well with the balance of a bail by sufficient sureties system.  Concerns about indigent defendants in the system have been addressed in other states by turning to due process fixes to successfully remedy those concerns to make sure it is public safety risk and risk of flight that lands people in jail.

There is no need to quickly jam through a constitutional amendment that eliminates a core individual constitutional right that has existed for hundreds of years, and then tell everyone in State of Connecticut, as to the new system of pretrial release, don’t worry about it…we’ll figure it out later – long after we take your constitutional right to bail away.