Published by the Kings County Bar Association in the December issue of Bar Bulletin
By Jeffrey J. Clayton
As we have watched the no-money bail movement continue to sling false narratives, the undeniable truth has emerged that the actual no-money bail system is too expensive. The price tag is too high for state and local governments, while the defendants we are supposedly trying to protect are finding the costs equally excessive in terms of their rights, which they are being asked to surrender.
While it is often posited that we need to move more toward the current federal bail system, we should keep in mind that only a generation ago Justice Thurgood Marshall would have held the federal system unconstitutional at the urging of the ACLU. He accurately forecast it would be a system that would “go forth without authority and come back without respect.”
Regarding false narratives, we often hear that jails are places where the poor are simply warehoused, while being coerced to plead to charges for which they are not guilty. The national talking point declares as fact that 70 percent of persons in jail are languishing because they cannot afford their bail.
Yet, the Pretrial Justice Institute — the main national group pushing the no- money bail system — recently debunked its own key issue in a report noting that the rate of pretrial incarceration is less than 20 percent in 43 states. Indeed, Washington is among 13 states that have a pretrial incarceration rate of less than 10 percent.
In addition, when one looks closely at the makeup of King County’s correctional system, a very different picture of who is actually in jail emerges. According to the 2016 King County Detention and Alternatives Report, only 11 percent of the jail population was there on low- level misdemeanors that would, in theory, make them eligible to be evaluated by the risk assessment tool favored by bail reform advocates.
The analysis should not stop there. Of this 11 percent, many have local and federal hold restrictions and in-custody programs that would prohibit pretrial release anyway. Perhaps most significant is the fact that 94 percent of the inmates in King County jail facilities are under secure confinement. Such an inmate is, by definition, not a first-time, low-level offender who is there simply because he or she cannot post bail.
Defining the actual scope of the problem is important in constructing the appropriate solution. If it can be clearly shown that use of a risk assessment tool can actually help address the reportedly 6 percent of the population in King County jails who might utilize it, it might make sense. As it stands, the county does a remarkable job on pretrial release, with an incarceration rate only 40 percent of the national average and a median length of stay for all bookings of just one day. Further, 55 percent of all bookings in King County turn over in three days and there must be a probable cause hearing in Washington within 48 hours of arrest.
Taxpayers should not be burdened with funding the overhaul of a system that works phenomenally well for 94 percent of the jail population in King County, just to fix a problem that may exist for only 6 percent. A size-appropriate solution should be found.
Another mistruth being perpetuated as fact is that bail is unconstitutional if someone cannot afford it, pursuant to the equal protection clause. That very question is currently being decided by the U.S. Courts of Appeal for the Fifth and Eleventh Circuits.
The U.S. Department of Justice, under the Obama administration, launched what The Wall Street Journal termed a “guerrilla war against small cities in the south” for their bail policies. The DOJ had something of a point when it cited the unfairness of cases where a person for whom bail was set by a schedule was forced to wait up to two weeks prior to going before a judge for their bail review. Because of that and since the ruling in Varden v. City of Clanton, a gold standard has been set, with the requirement that all bails set by a schedule must be reviewed by a judge within 48 hours.
In October, the Justice Department under Attorney General Jeff Sessions, along with nine state attorneys general, came to a consensus that there is no right to affordable bail. Instead, there is a right to a bail that is not excessive, as judged by the facts of each case. Also, any bail set by a schedule must be promptly re- viewed no later than 48 hours after it is set. Therefore, despite all of the rheto- ric, the issue was ultimately defined as one of adequate due process, rather than the forced redefinition of the Eighth Amendment and states’ constitutional right to bail.
A key component of the no-money bail movement is the advocacy to change state constitutions so that authorities have the discretion to detain those whom they label as dangerous via the use of computer algorithms. It follows that an unposted bail would not operate to keep someone in jail if there are no monetary conditions of bail at all.
It might surprise some that only a generation ago the ACLU opposed the Federal Bail Reform Act of 1984. It did not feel that preventative detention was constitutional, nor was there a general belief that computers could ever be used to scientifically predict who was dangerous.
Of course, Justice Marshall vigorously dissented in U.S. v. Salerno on this very question:
Throughout the world today there are men, women, and children interned indefinitely, awaiting trials which may never come or which may be a mockery of the word, because their governments believe them to be “dangerous.” Our Constitution, whose construction began two centuries ago, can shelter us forever from the evils of such unchecked power. Over 200 years it has slowly, through our efforts, grown more durable, more expansive, and more just. But it cannot protect us if we lack the courage, and the self-restraint, to protect ourselves.
Today, the no-money bail movement and various local chapters of the ACLU have forgotten history and are now demanding that government be given carte blanche to label people as dangerous, while entirely eviscerating the right to bail in our country.
While then-Chief Justice William Rehnquist, through the Federal Bail Reform Act of 1984, made it legal for state systems to abuse their authority, he did not have the power to make it a good idea. And of course, the federal system, as Justice Marshall predicted, has undeniably come back without respect since the rate of pretrial incarceration has increased by 167 percent since the passage of the act.
In New Jersey and New Mexico, the use of preventative detention has proven to be a disaster. As their laws are currently written, the only mechanism by which a defendant remains in jail pending trial is by proving through clear and convincing evidence that he or she is a danger to the community or a flight risk. Requiring this of a prosecutor is too ex- pensive and impractical. It means having to put on a mini-trial before the actual case is heard and sets too high of a bar to be used as general crime control policy.
On the other hand, requiring the posting of security is flexible and judg- es can adjust bails under long-standing Eighth Amendment and state case laws as to what qualifies as excessive bail. In states where it is in use, the strike rate of preventative detention is lower than 50 percent.
A huge problem arises in states where there is no ability for a judge to impose a financial condition of bail. In situations where a prosecutor believes a defendant is too dangerous to be released — but is unable to prove it by clear and convincing evidence — the person is then released on a simple promise to appear. As it currently stands, there is simply no other legal alternative to this dilemma.
The alleged savings in these no- money bail systems is also proving to be a myth. Due largely to a complete shift in policy as to the handling of drug of- fenses, jail populations in New Jersey have been dropping for half a decade. Despite this, the state’s Acting Adminis- trative Director of the Courts Glenn Grant testified in May that absent a major infu- sion of dollars, the no-money bail system would run out of financing by the end of 2019. For this reason, the association of counties sued New Jersey alleging an unfunded mandate. In addition, various bar associations also sued over the fee increases to support bail reform.
Meanwhile, in California, Chief Justice Tani Cantil-Sakauye recommended the no-money bail system, but then clearly acknowledged that we cannot rely on savings to pay the bill. Of course, this is exactly what state legislative analysis has been indicating all along — it’s probably a $1-billion annual proposition to implement.
As we look back on the chronology of the no-money bail systems implemented this year, the lesson to be learned is that we can make adjustments at the top end of the system and at the bottom end, while leaving intact much of what goes on in the middle.
Yes, a case can be made that certain crimes should be deemed eligible for preventative detention and that a limited number of defendants should have to face this as a result. One might also argue that the current wait time for bail reviews is too long. The indigent, among others, may be forced to deal with an excessive bail for an undue length of time.
We might also look at other options. In instances where we would normally turn around and release the same person on a simple promise to appear, we might issue a citation and summons instead.
As the no-money bail movement finally reaches its crescendo, what we have really learned is that we can recalibrate the bail system simply and efficiently without bankrupting taxpayers and simultaneously harming the civil liberties of every citizen. At the end of the day, judges need the best information they can get to make educated decisions and we have to trust them to get it right.
Jeff Clayton is the executive director of the American Bail Coalition. 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 15 years, and also as a licensed attorney for the past 14 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. Clayton 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. Clayton holds a B.B.A. from Baylor University, an M.S. (Public Policy) from the University of Rochester, and a J.D. from the Sturm College of Law, University of Denver.
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