MN: Hennepin County Attorney’s No Bail Plan is A Dereliction of Duty, Unconstitutional and Not Evidence-Based

Hennepin County Attorney Mike Freeman had a press conference and issued a press release on December 2, 2020 announcing he was no longer going to seek bail in a variety of crimes. According to Freeman, these are “low-level, non-dangerous” offenses that need no additional layer of accountability – regardless of the circumstances.  These “low=level” offenses include Fifth-degree sale of narcotics, theft under $35,000, theft of a motor vehicle, property damage, insurance fraud, and the list goes on.

You may not be surprised to hear…this is not going to end well.

RELATED:  Bail Changes Announced for Hennepin County

Assailing bail—that’s what so-called “reformer prosecutors” do to try to prove to activists that they can both bring and maintain a prosecution for a felony matter involving a lengthy prison term against someone but then make you feel sorry for the same defendants who are supposedly unable to post bail.  Of course, there is no evidence to support that assumption of unaffordable bail other than the continued false claims by bail activists and bail fund organizations posting bonds for repeat rapists and cop killers.

The irony here is obnoxious – they can nail someone to the cross with a lengthy conviction, but they let them out for a while before they do it.  That is how progressive prosecutors get their street creds—they prosecute the hell out of defendants but they make it more “fair” and “easy” for them during the process of sending them to prison in disparate numbers causing mass-incarceration over the last generation.  Hennepin County Attorney Mike Freeman is following the progressive prosecutor outline in a way that would make even George Soros proud – he’s going to charge defendants with felony 4 drug possession and send them to prison, but regardless of how many times that same person has committed the same crime or failed to appear in court, he’s never going to request that the person put up any security in order to be released from jail.  EVER.  Yet, this same Prosecutor has no problems requesting a 15-year prison sentence because that is fair.

This is a dereliction of duty by the County Attorney.

A prosecutor has a duty to treat each case individually, and not pre-judge the outcomes or litigation of a criminal matter.  In Minnesota, Judges set bail pursuant to the constitution, which states, “All persons before conviction shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.”  The sufficiency of the sureties is what judges are looking at—do they need to require some security for appearance under Stack v. Boyle, or is the person released on their own recognizance?  For a prosecutor to say they are never going to seek any security before seeing the defendant’s case is a true dereliction because the statutory factors are what are required to be weighed by the court, and prosecutors must be faithful to the law.  It is the duty of the prosecutor to make arguments in an individual case based on the law.  In addition, the prosecutor has not met with nor ascertained who the victims of the crimes were and the severity or extent of their losses and harms because he has already pre-judged the case as “low-level.”

This policy is not evidence-based and contrary to the statutory factors. 

For years studies have shown there is no correlation between the crime charged by a prosecutor and the likelihood of committing a new crime while on bail or failing to appear in court.  In fact, the same arguments have been used for years to assail the use of charge-based monetary bail schedules.  Yet, County Attorney Mike Freeman did just that, however, arguing that his office identified the “charges” that they consider “low-level” and “non-dangerous” offenses. This is an important point—there is no basis in fact for making this policy.  There was no data set pulled that demonstrated persons charged with these charges are lower risk for failing to appear in court or to commit a crime while on bail.  In fact, research for a generation has shown the opposite.  We call on the County Attorney to release all data, analysis, memorandums, and other information that lead to the development of this policy.  We believe there is no basis other than is own judgment or gut-feeling that he thought these crimes were low-level.  Let’s see the research.

This policy is unconstitutional as applied to defendants for whom bail is recommended. 

There is no rational basis for the charges selected and those included or excluded because there is no correlation between the charge filed by a prosecutor and risk of committing a new crime or crime while on bail.  If the County Attorney had an evidence-based mechanism that could predict accurately, like a risk assessment, it would most likely be based on the circumstances of an individual defendant (prior crimes, prior charges, ties to community, etc.) and not based solely on the charge.  For example, a person charged with a F-3 drug possession who is a first-time offender, life-time resident, good candidate for rehabilitation, family supports and lives in town, who has never been arrested before and fell into heroin as part of the opioid crisis is a person for whom the District Attorney will allow his prosecutors to seek bail.  But if you have a defendant who failed to appear in court 25 times over 10 years, has 5 prior felony convictions, and is charged with 25 counts of insurance fraud, then this County Attorney will never seek bail.  There is no rational basis for his policy, and thus in cases where he does seek bail, he does it unconstitutionally by discriminating against criminal defendants when he has no basis to do so.

To illustrate this point further, an expert in this field, Professor Alex Tabarrok of George Mason University cited a critical study from New York as part of a forum in which he appeared on C-Span on March 15, 2019.  Said the Professor: “The people who do not make bail are on average more dangerous, they have twice as many arrests and twice as many convictions. For example, the average defendant who doesn't make bail has six previous felony arrests and four previous failures to appear.”  To the County Attorney’s assertion that bail has nothing to do with public safety, Professor Tabarrok had this to say: “The bounty hunters are really the long arm of the law and my colleague and I find that people who are released on commercial bail are 28% more likely to show up and if they fail to show up, they're 50% more likely to be caught quickly and to not be at large within a year.”  Of course, when persons become fugitives from the law they typically don’t go ahead and voluntarily reform themselves—they continue their crime-committing behavior.

The list of the crimes are not low-level and will include defendants who are a public safety threat.

Fourth-degree controlled substances crimes carry a potential $100,000 fine a 15-year prison term, although admittedly first offenders generally do not get jail time (which brings us back to the fact that the existence of the lodging of a particular criminal charge by a prosecutor has no rational basis as to risk of new crime or failing to appear).  We are sure that persons who have $34,999 in property stolen from them, or their cars, would not feel that these are low-level.  Enabled also from this no-bail policy will be porch pirates, identity thieves, check kiters, forgers, lottery fraudsters, drug dealers, welfare and un-insurance benefit fraudsters, and those committing insurance fraud.  Regarding insurance fraud, it is a $40 billion business according to the FBI that raises insurance premiums for every American, including everyone in Minnesota, by between $420 to $700 a year.  But, hey, who cares about that.  We want these fraudsters to be able to afford their bail.  So, never should any of them ever have to post any security, despite the fact that the Minnesota Constitution may require it.

A question of ethics.  Disregard for victims.

It is questionable whether a prosecutor may ethically discharge his duties to victims’ rights and to handle cases on a case-by-case basis by pre-judging recommendations of bail decisions, as an officer of the court tasked with requesting “sufficient sureties” under Minnesota’s constitution, based solely on the charge for which there is no evidence supporting or scientific basis to do so.  Prosecutors are tasked with seeking justice in individual cases, and to say that a person who is charged with 100 counts of insurance fraud against elderly persons or stealing 50 cars, who is indeed a flight risk and danger to the community should always get out without any sureties illustrates this point.  Prosecutors cannot do justice until the facts come before them and they have a duty to seek input from the victims of such crimes.  To pre-judge cases, arbitrarily deny all input from victims before they even become victims, is a policy antithetical to the charge of seeking justice in every case.

Will Judges abandon their role?

It will be interesting to see if Judges abandon their role as anticipated by the constitution and instead go along with this complete nonsense.  Judges have discretion to set bails in Minnesota and are themselves charged with setting sufficient sureties as bail in all matters.  For them to rely on a policy that lacks a rational basis, that discriminates against defendants in a fashion that is unconstitutional, that does not consider the statutory factors enacted by the legislature for the setting of bail, and which is not a case-by-case decision seems like something they are not going to do.  Case in point – San Francisco, where the District Attorney has announced that he is never going to ask for sufficient sureties, yet judges are indeed ignoring him in favor of following the law.

We certainly hope that Minnesota judges realize that this unconstitutional move by an officer of the court is antithetical to the Minnesota Constitution and inconsistent with the duty of prosecutors and judges to discharge their duties in individual cases in accordance with the law.

As crime continues to spiral out of control in the Twin Cities, these kind of reckless policies will add fuel to an already raging inferno.  As one news outlet recently reported: “Violent crime has surged to record highs across Minneapolis this year, rising in more prosperous neighborhoods that typically experience few such incidents while continuing to exact the heaviest toll in the city’s poor, ethnically diverse areas.”  More free passes and a new revolving door will only add to an already alarming issue of destabilization and lack of criminal accountability.