Connecticut’s Proposed Constitutional Amendment Would Replicate New York’s Failed Bail Reform

Connecticut's Proposed Constitutional Amendment Would Replicate New York's Failed Bail Reform

Connecticut sits on the precipice of disaster -- that is, if the state General Assembly has its way with a proposed constitutional amendment which would eliminate the constitutional right to bail and replace it with a statewide system of preventative detention or release.  A short list would be created of crimes for which one would stay in jail, along with a much longer list consisting of offenses wherein individuals would be released from jail for free.  They would be released no matter how many times they have offended or if they even missed every court date.  Beyond that, the details would be determined at some undefined future date.

Lawmakers hope to convince voters to choose a system similar to the one employed by New York in 2020, which has proven to be an unequivocal failure.

Proponents argue that their legislation closes a "loophole" created by Connecticut's 2012 abolishment of the death penalty and the ambiguous language that accompanied it in the Connecticut Code.  They say that former capital offenses that were previously punishable by death and by life imprisonment have been bailable since that time.  The fact is, if they truly sought to fix this problem, the proposed constitutional amendment should have simply stated that all prisoners are bailable by sufficient sureties “except those charged with murder with special circumstances as defined by the General Assembly.”

The proposed amendment would also forever do away with the right to bail by “sufficient sureties.”  This is no small thing.  Connecticut is one of forty-one states that have an affirmative state constitutional right to bail that provides a greater and absolute right to bail -- even more than what our federal constitution requires.  The right to bail by sufficient sureties offers an affirmative guarantee that everyone, except capital murder, is bailable.

Abolishing the right to bail by sufficient sureties also shifts the balance in favor of detention over time because nothing guarantees appearance more than a bail set by a judge.  To see evidence of this, we need look no further than the federal system.  It had a 24% detention rate pending trial in 1984 when there was a right to bail by “sufficient sureties” prior to implementation of the Bail Reform Act of 1984.  Today it sports a 75% detention rate.  For these very reasons, this constitutional amendment is being opposed by the ACLU of Connecticut, the Office of the Connecticut State Public Defender, in addition to the Connecticut State Division of Criminal Justice.

The proposed legislature is very likely to replicate the same catastrophic problems seen in New York.

At present, judges can use their discretion to determine who is to be detained and who is to be released on a case-by-case basis.  They examine specific factors of a defendant and the case rather than making an arbitrary decision.  If this new legislation becomes law, this ability would be removed.  Instead, a narrow detention net would be set, based solely upon the crime charged.  Criminal justice based only on faceless data has never worked and would certainly fail again.  A harbinger of this dark possible future can be seen by noting that the Connecticut Sentencing Commission has already proposed a specific recommended detention eligibility list.  It is logical to assume the legislature will follow it closely when election time rolls around in November 2024.  Even as they tout the shiny new features of the proposed new law, voters should beware of what their constitutional rights would look like if it truly comes to pass.

What this all really means is that New York bail reform is this close to becoming a reality in Connecticut.  These are the hard facts; according to the Sentencing Commission, the following crimes would be granted automatic free release, with no intervention from a judge possible: all misdemeanor crimes, including shoplifting and driving while intoxicated; all felony theft and larceny crimes; and all hate-motivated crime enhancers.  In addition, other crimes that would be given automatic free release include felony sexual enticement of a minor, theft of a firearm; or illegally carrying a firearm on school grounds.

While this summarizes precisely what New York's problem is, Connecticut stands to do even worse.  That is because the state's list of felonies for which there will never be detention is considerably more expansive than New York's.  At least New York judges still have some discretion in setting bail on certain crimes that go beyond what Connecticut's Sentencing Commission allows.

Connecticut residents should be adamantly in opposition to the elimination of one of their core constitutional rights.  The system being proposed is actually no system at all.  Instead, it provides an inroad for whoever is in control of the state legislature in some undefined future time to plug in almost any unproven system, with no oversight.  The lawmakers of the Constitution State would be wise to just stick to the constitution.

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