Federal Judge Rosenthal's bail reform social experiment is a failure; U.S. Court of Appeals has a chance to restore criminal accountability

This past April, Federal District Judge Lee Rosenthal issued an order granting a preliminary injunction in a case in Houston that asserted that the use of monetary bail is unconstitutional if someone cannot afford it.  This disaster of a social experiment that she foisted upon the public was put to the test earlier this month when the case was heard in Federal Appeals Court in New Orleans.  A decision by the three-judge panel is pending, but indications are the order is not likely to stand up according to many who witnessed the proceedings.

It would seem that Judge Rosenthal decided to go experimenting in the first place because of a seemingly overwhelming body of science that said having to post bail to get out of jail simply is unfair and has no impact on appearance rates in court or on new crimes.

These were the central talking points of various groups pushing the judge toward the “no money bail system.”  These groups were largely funded by then-President Obama’s Justice Department, along with billionaire George Soros.

Even as the case was being heard by the appeals court and with nearly six months of data at our disposal, we pondered the question: Does Judge Rosenthal’s social experiment actually work?

The purpose of bail, as defined by most state constitutions and laws, is to make sure that if a criminal defendant arrested by the police is released from jail pending trial, that the defendant shows up for court and commits as low a rate of new crimes as possible.

The problem is that the data clearly shows that people simply do not show up for court when issued one of Judge Rosenthal’s get out of jail free cards.  This is so despite her belief in the new pretrial science that has tainted the entire process.  In fact, 34.6% of those the judge is releasing will thumb their nose at the process and not show up for court, costing Harris County millions of dollars to remedy.

The Facts are the facts.

Despite Judge Rosenthal’s negative view of the so-called “wealth-based detention system,” it actually performs much better. Only 5.8% will fail to show for court when they use a bail bondsmen and only 10.7% will fail to show when they post cash from either their own funds or from a friend or relative.

Notwithstanding the judge’s belief in her particular brand of science, the science of common sense actually prevailed.  Yes, economic incentives really do work.

Judge Rosenthal’s order has resulted in a wave of new crimes in Houston that is victimizing the community rather than creating the pretrial utopia sold by the progressive no-money bail activists.

In sample data obtained from Harris County, of all the misdemeanor defendants who committed a new crime while being released on bail, 76.7% were released under the judge’s edict.  That rate is astronomical when compared to releases on cash or bail through a bail bondsman.  In fact, the rate of new offenses by individuals released by her order is 440% higher than those released by posting their own cash or by a bail bondsman.  And these were not just low-level offenders shoplifting candy from 7-Eleven — they committed a range of violent felonies and sex offenses that would make anyone’s head spin.

“A culture of non-accountability.”

Apparently, Judge Rosenthal had her heart set on moving Harris County in the direction of Lucas County, Ohio, the locale of another prime example of pretrial utopia.  Even Dr. Marie VanNostrand, an expert who represents plaintiffs in criminal trials, admitted recently that 47% of criminal defendants fail to show up for court, creating what lawyers for Harris County called “a culture of non-accountability.”

And so it was that a showdown was set this past October 3 in the U.S. Court of Appeals.  If the judges do as they should and consider logic and the cold, hard statistics, their only reasonable and fair decision will be to scrap Judge Rosenthal’s order.

If in fact her court truly wants to entertain legislating from the bench, then we would strongly suggest returning to the greater use of financial conditions of bail in a majority of these cases.  Doing so would be more effective in obtaining justice for victims and prevent the further victimization of our community.

Analyzing the data…

Since Judge Rosenthal’s order was entered on April 28, 2017, requiring the release of hundreds of defendants on a get out of jail free card (called an “unsecured Sheriff’s bond”) rather than having to post bail, we have seen the following results according to data obtained from Harris County, TX:

Those criminal defendants Judge Rosenthal’s order released had very high failures to show up   for court:

• The rate of failing to appear in court of those released pursuant to Judge Rosenthal’s order is 34.62%
• This failure rate is three times higher than those posting cash bonds (10.65%)
• This failure rate is over six times higher than those defendants posting a surety bond using a surety bail bondsman (5.84%)

Those criminal defendants Judge Rosenthal’s order released had much higher rates of new crimes while on bail:

• In a five week sample, there were 150 new crimes committed by persons out on bail
• 115 of those (76.7%) were released by Judge Rosenthal’s order
• 2 of those (1.3%) were released on a cash bond, 18 of those (12%) were released on a personal bonds, and 15 (10%) were released on a surety bond using a bail bondsmen.
• The rate of new crimes on bail was 4.4 times higher for those released by Judge Rosenthal on a     get out of jail free card than those released on a financial condition of bail (cash or bail bond).

Those criminal defendants Judge Rosenthal’s order released, who were only originally charged with a misdemeanor, then went on to commit serious felony and other offenses while out one of Judge Rosenthal’s get out of jail free cards:

• The new offenses committed by those released by Judge Rosenthal’s order included a wide varies of violent and sexual offenders offenses, including aggravated kidnapping, domestic battery, assault of police officers, illegal possession of firearms, sexually assaulting children, making terrorist threats, etc.
• There are also a wide variety of non-violent but still serious offenses committed including DUI,  theft, fraud, trespassing etc.

About Jeffrey Clayton, Executive Director of the American Bail Coalition:

Jeff Clayton joined the American Bail Coalition as Policy Director in May 2015. He has worked in various capacities as a public policy and government relations professional for fifteen years, and also as licensed attorney for the past twelve 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. Jeff spent six years in government service, representing the Colorado State Courts and Probation Department, the Colorado Department of Labor and Employment, and the United States Secretary of Transportation. He is also a prior Presidential Management Fellow and Finalist for the U.S. Supreme Court fellows program. Mr. Clayton holds a B.B.A. from Baylor University, a M.S. (Public Policy) from the University of Rochester, N.Y., and a J.D. from the Sturm College of Law, University of Denver.