Judiciary Committee

JOINT FAVORABLE REPORT

Bill No.:

HB-7044

Title:

AN ACT CONCERNING PRETRIAL JUSTICE REFORM.

Vote Date:

Vote Action:

JFS

PH Date:

3/20/2017

File No.:

SPONSORS OF BILL:

Governor Malloy

REASONS FOR BILL:

To implement criminal justice reform by reducing the possibility that individuals will be incarcerated pretrial based solely on their financial status and inability to meet bail.

SUBSTITUTE LANGUAGE:

The original bill was struck and the following substitute language was added:

Section 54-64(a)

The substitute language contains minor internal reference modifications.

The substitute language in subsection (a)(1) removes the ability of a judge to provide an arrested person the option of release by use of a cash deposit of 10% of the bond set. The substitute language also requires that a judge may not be prohibited from setting a surety bond, in addition to using the other listed conditions of release contained in the subsection.

Subsection (a)(3)(A) of the original bill is incorporated as subsection (a)(2) in the substitute language. The new substitute language in subsection (2) states that judges shall not impose cash bail for individuals charged with misdemeanors unless the person is charged with a family violence crime, the individual requests such cash bail, or the court makes a finding on the record, considering past criminal history, that the individual presents a risk for failure to appear, will obstruct or attempt to obstruct justice or threaten a juror or witness, or will be harmful to himself or others.

Section 54-53(a)

The substitute language in subsection (a) extends the permissible detention of any arrested person in a correctional facility who has not made bail from 30 (in the original bill) to 45 days.

The substitute language in subsection (b) removes from consideration under the subsection any person who was arrested for an unclassified felony offense with a maximum of 5 years imprisonment. The substitute language extends the deadline for presentment of individuals arrested under the applicable offenses from fourteen to thirty days and allows for the arrested individual to waive this cognizance requirement. The court is no longer required to make a finding on the record of a person's ability to pay during this presentment but may reduce, modify, or discharge bail for cause shown, or remand the person to custody. The substitute language extends the time for each successive presentment of an arrested individual from fourteen to thirty days.

The substitute language added a new subsection (c). Subsection (c)(1) requires that any person charged with a misdemeanor who has not made bail, except for a person charged with a crime in another state, be presented for cognizance within fourteen days of his arraignment, unless he waives such presentment. Subsection (c)(2) is added and requires that the court remove any financial conditions of release of any person detained for a misdemeanor that is not a family violence crime, unless the court makes a finding pursuant to subdivision (2) of subsection (a) of section 54-64a. Under the new subsection (c)(3), the court shall remove financial conditions of release of any person detained for a misdemeanor family violence crime, unless the court finds that the person presents a risk for failure to appear, will obstruct justice or threaten witnesses or jurors, or will threaten the safety of others.

Subsection (c) of the original bill is incorporated without changes as subsection (d) in the substitute language.

Section 3

The substitute language adds a new section 3, requiring that the Undersecretary for Criminal Justice Policy and Planning at OPM, the Connecticut Sentencing Commission, and the board of directors at the Bail Association of Connecticut study the feasibility, including funding sources, of establishing a program that provides assistance to indigent criminal defendants detained on a pretrial basis for minor criminal offenses.

Sections 4-17

The substitute language strike sections 4-17 from the original bill.

RESPONSE FROM ADMINISTRATION/AGENCY:

Governor Dannel Malloy

Gov. Malloy offers this bill to institute pretrial justice reform to further Connecticut's status as a nationwide leader in criminal justice reform, reduce recidivism rates, reduce the prison population, and emphasize the necessary family connections and other support for successful re-entry into society. This will benefit the state's bottom line. After the Connecticut Sentencing Commission's study revealed that Connecticut's current pretrial release system fails to enhance public safety and does not guarantee the appearance of a defendant in court, Gov. Malloy proposes to: i) prohibit money bail for misdemeanor charges, except where the defendant presents a safety threat to others; ii) provide the opportunity for a cash deposit of 10% of the total bond set; iii) increase the frequency of bail redetermination hearings; iv) prohibit cash only bonds; v) require that courts make a finding on the record of a defendant's ability to pay bond; and v) tighten up bond forfeiture requirements. The governor's office notes that each day individuals are detained pretrial simply because they cannot afford bail despite the fact that their potential convictions do not carry any jail time. The bill is designed to allow a judge to focus primarily on the risk that the individual presents to society, and dispense with bail if necessary. If the risk is too high, a judge retains all options, including money bail, to handle the individual. The bill categorically excludes family violence crimes from the default no-money bail provision.

Connecticut's Chief Public Defender-Deborah Del Prete Sullivan, Esq.

The Office of the state's Chief Public Defender supports the bill and suggests that language be considered for Section 2 to avoid duplication of efforts between the Office and the judicial branch. Specifically, the Office notes that it may be in the best position to advise the court on an individual's ability to pay bond as it already requires its clients to complete an “Affidavit of Indigence Form” under penalty of perjury. This affidavit can be used in lieu of a court ordering completion of a separate financial affidavit. The Office is also aware of any changes in its clients' financial statuses and is in a good position to inform the courts of such. Consolidation of the efforts of Section 2 with the Office can preserve judicial resources.

Connecticut Department of Correction-Commissioner Scott Semple

The Department of Correction supports the bill because it will divert individuals who do not need to be incarcerated pretrial from the Department. This will allow the department “to dedicate its staff and services to those inmates who need it most.” Semple also notes that the Risk Reduction Earned Credits program (proposed to be codified in S.B. 575) is an integral part of this proposed bill.

State of Connecticut Board of Pardons and Paroles-Carleton Giles, Chairperson

Giles stands in support of the bill “which eliminates financial conditions of release for misdemeanors and makes other changes to the state's pretrial justice system.”

State of Connecticut, Division of Criminal Justice

The Division of Criminal Justice is opposed to the bill because requiring a hearing every 14 days would impose additional financial burdens on the judicial branch, the Division of Criminal Justice, the Division of Public Defender Services, taxpayers, and defendants who have retained private counsel. The 14-day requirement is superfluous as defendants already have the ability to file motions to reduce bonds or request release on non-financial conditions. The Division questions the impact that bond determinations based on financial status will have for crimes such as murder or aggravated sexual assault. Section 2 requires judges to make a bond determination based solely on an ability to pay, even if the judge thought the defendant was at risk of fleeing or injuring someone else. It also requires judges to release a defendant accused of a misdemeanor crime unless he posed injury to another, even if a judge found the defendant might flee, obstruct justice, or tamper with a witness or juror.

Chief State's Attorney-Kevin Kane, Esq.

Attorney Kane is opposed to the 14-day hearing provision of the bill because it will be time-consuming, impose substantial burdens on the court system and public defender's office, and result in higher costs for private attorneys. Kane notes that defendants currently have the ability to file a motion for reconsideration of bail at any time. He believes that the governor has proposed this bill without anyone first investigating why each individual is being held pretrial; for example, while many “controlling” offenses are listed as misdemeanors, in reality defendants are being held for more serious felony charges. Additional research must be conducted to determine how many individuals are actually being held pretrial solely on misdemeanors before the governor's proposal is implemented. Kane also notes that the Sentencing Commission compares Connecticut's release rate with states that use forms of preventative detention release, and found Connecticut released the same percentage of individuals.

Victim Advocate for the State of Connecticut-Natasha M. Pierre, Esq.

As the state's victim advocate and a member of the Connecticut Sentencing Commission, Pierre opposes the bill because it has potential to jeopardize victims' and public safety, overwhelm court dockets, and adversely impact already overburdened victims. Pierre notes that many victims have a constitutional right and feel personally compelled to appear in court each time their offender does. Therefore, the 14-day hearing requirement will burden the crime victim community and cause them further unnecessary hardships.

NATURE AND SOURCES OF SUPPORT:

Connecticut Bail Fund-Brett Davidson, Founding Director

As director of a New Haven-based non-profit that works to provide bail for impoverished low-level offenders, Davidson is concerned that Connecticut's current pretrial justice system has caused many poor people to lose their jobs, housing, child custody, and to spend time, post-jail, paying debts to commercial bail bondsmen. Due to these detrimental consequences of the current bail system, many of these poor low-level offenders face the decision to either fight for their innocence while sitting in jail, or to plead guilty and return home. This practice of predicating release on an ability to pay has created a presumption of guilt among the state's impoverished, a situation fundamentally at odds with our criminal justice system's presumption of innocence. Davidson emphasizes that the 10% option conforms closely to the allegedly non-punitive purposes of bail, and will combat the current “transfer of wealth” from poor defendants to the commercial insurance industry and bail bondsmen. Davidson described his line of work and provided anecdotal evidence of defendants daily being incarcerated due to an inability to pay. He reiterates that most of these individuals would not face jail after a conviction, and that the only justification for pretrial detention is to control their “bodies.” Judges currently make bail determinations in a rushed manner, often in less than a minute, with little evidence presented and with prosecutors that “dramatize” the egregiousness of the alleged offense. All of this results in a denial of due process rights. Davidson also notes that this problem does not just involve those actually detained pretrial, but also encompasses those who struggled to make bail and thereafter face the repercussions of a staggering debt from their desire to remain out of jail. This “continuing” punishment disproportionately affects minority populations in the state.

ACLU of Connecticut-David McGuire, Executive Director

The ACLU of Connecticut supports the bill because it will further Connecticut's status as a national model for criminal justice reform and will reduce the number of people sitting in Connecticut's jails simply due to an inability to pay for their release. By eliminating cash bail where it is otherwise unnecessary to truly ensure public safety, the bill wipes out a penalty for being poor. While Connecticut is the “gold standard”, there are indicators that racial and financial inequities exist in the detained individual population. McGuire notes that this bill can help remedy racial disparities in Connecticut's jails, as 58% of people in jail for a misdemeanor are minorities, and the requirement for a finding of a defendant's ability to pay on the record will increase transparency. McGuire also emphasizes the hardships that unnecessary pretrial detentions have on individuals, which can reverberate through entire families and affect children. Studies show that over half of the people held in New Haven, Bridgeport, and Hartford have dependent children and an unequal bail system that punishes the poor and only perpetuates poverty by jeopardizing children's' financial wellbeing. McGuire supports the 14-day hearing requirement as it will ensure judges get the bail amount correct the first time out of a fear of being reviewed in two weeks. Although defendants currently have the opportunity to motion the court for review of their bail at any time, the reality is that the public defender's office that represents a majority of these individuals is so overburdened that the option is essentially meaningless. Similarly, the 10% option is a meaningful opportunity for defendants to avoid jail as statistics show that people can afford these amounts and return to court to get their money back.

Reason Foundation-Lauren Krisai, Director of Criminal Justice Reform

As director of a national non-profit organization, Krisai notes that Connecticut routinely detains low-level offenders due to an inability to meet bail, despite the fact that their convictions do not carry a term of incarceration. She also notes that pre-trial incarceration often puts additional stresses on otherwise low-risk defendants, making them less likely to appear in court and more likely to commit new crimes. The financial impediments of bail also incentivize poor defendants to plead guilty in an effort to avoid jail time. These resulting criminal convictions, in turn, present a barrier to re-entry. Krisai also favors the bill as a way to reduce fiscal costs to the state of housing low-risk defendants who cannot meet bail.

Connecticut Criminal Defense Lawyers Association-Jennifer Mellon, Esq.

CCDLA, a non-profit organization dedicated to defending persons accused of criminal offenses, supports the bill because it believes access to justice should not be based on financial status. Mellon explains that the bill is designed to eliminate the disparate impact of Connecticut's bail system on the poor and alleviate the pressure to plead guilty due to a lack of financial resources. Furthermore, Mellon notes that pretrial detainment has a detrimental impact on people's jobs, homes, and connections to the community, often causing them to commit more crimes. The bill's reform measures will help reduce recidivism rates among people unable to meet bond. Pretrial detention also severs community connections for those people who suffer from mental health or require substance abuse treatment. Finally, the CCDLA believes that the misdemeanor release provision appropriately addresses the “core concerns” of release, which are protecting the public and ensuring the appearance of the accused.

Vera Institute of Justice-Nancy Fishman, Esq. and Insha Rahman, Esq.

Vera Institute, a non-profit organization working nationwide on effective criminal justice policy and reform, supports the bill. Specifically, Vera supports the requirement of individualized determinations of ability to pay because judges should have more comprehensive information during the bail hearing. Vera believes that additional bail hearings will ensure people do not remain in jail simply because they cannot afford bail. The 10% option, moreover, is a means of maximizing pretrial release while maintaining a person's financial stake in the case. Vera suggests that courts consider whether other forms of bail, such as a partially secured bond or other nonfinancial conditions of release, could be imposed. A 2011 study from the Pretrial Justice Institute and an April 2017 study from Vera found that partially secured and unsecured bonds are as effective as cash bail. Additionally, these alternatives to cash bail allow defendants to deposit the same amount of cash with the court as they would otherwise with a commercial bail bondsman, but to avoid the costly additional fees and charges of bail bondsmen. Vera suggests additional considerations for the bill, including requirements that tailor pretrial release conditions to risk and need, increase data collection and analysis of pretrial detention, and obtain information on the amounts and forms of bail.

Connecticut Coalition against Domestic Violence-Liza Andrews, Director of Public Policy and Communications

CT CCADV, the state's “leading voice” for victims of domestic violence, specifically supports the carve-out for family violence crimes as it reflects an appreciation of the dangerousness of many domestic violence offenders. CT CCADV explains that domestic violence is a unique crime because it usually occurs in the home where an offender, who is released pretrial, is likely to return. Once an offender returns home, a victim may face additional abuse for seeking police intervention. CT CCADV emphasizes the importance of not automatically removing cash bond for these crimes because cash bond serves as an incentive both for future court appearance and for refraining from abusing the victim further.

Yankee Institute for Public Policy-Suzanne Bates, Policy Director

The Yankee Institute finds the bill is appropriate because there is room for improvement in Connecticut's current pretrial bail system. Specifically, the system can be improved to eliminate the possibility that wealthier individuals can buy their way out of jail even if the arrest is for a serious crime, while poorer individuals remain in jail for a less serious crime. The current use of pretrial detention also disrupts individuals' work and family lives, and imposes costs on society that wish to see these individuals become productive members of their communities. The Sentencing Commission's February 2017 report has demonstrated that the short-term detention of low- or moderate-risk individuals has actually been associated with an increased risk of re-arrest and failure to appear. Low-risk defendants who are detained even for two to three days are more likely to offend compared to defendants released within twenty-four hours of arrest. The Yankee Institute supports the provisions of the bill that reduces the use of financial conditions for release on a misdemeanor crime but includes extra conditions for persons released due to a domestic violence crime.

Connecticut Women's Education and Legal Fund-Madeline Granato, Policy Manager

CWEALF supports the bill's carve-out provision for family violence crimes as a means to protect victims of family violence in the state. CWEALF explains that domestic violence crimes are unique in that an offender released from custody often returns home, which is the same place where the victim resides. While non-financial conditions of release may prohibit an offender from returning home, those conditions are often not imposed. Preserving a carve-out provision for these types of crimes can help ensure victim safety.

Resident of Greater New Haven-Barbara Fair

Fair expresses support by noting that the sole purpose of bail is to ensure defendants show up in court, not to keep people in jail. Research has demonstrated that poor defendants are likely to accept a plea bargain simply to avoid jail time. Fair also notes that she has had personal experience with the current bail system as she struggled to come up with money to pay for her son's bail.

NATURE AND SOURCES OF OPPOSITION:

American Surety Company-Michael J. Whitlock, Executive Vice President

The American Surety Company opposes the bill and specifically the 10% cash deposit option because it is essentially a “90% discount” on bail. If Connecticut were to allow a 10% option, the remainder of the bond would remain unsecure and uncollectible, which would effectively reduce the bail by 90%. American Surety believes the 10% option violates the Connecticut Constitution, which states that all prisoners shall “be bailable by sufficient sureties”. Furthermore, the sole purpose of bail is to facilitate a defendant's release with a third-party guarantor to insure appearance in court, but the 10% option eliminates any concern of apprehension for future failure to appear. Surety backed bonds have “ten times” greater of an incentive to ensure a defendant will appear in court because they are secured by third-party co-signors who pledge significant financial collateral against the bond. American Surety believes instead that the 10% option is designed solely to provide additional profit to the state. If the 10% option is a desire to make bail affordable, the state should allow bail agents to post the amount and thereafter monitor the individual to ensure future court appearance. American Surety also does not see any justification for lowering the time for agents to search for criminal defendants from six months to 45 days.

American Bail Coalition-Jeffrey Clayton, Executive Director

The American Bail Coalition, a national trade association of bail surety insurance company underwriters, opposes the bill because it will “turn defendants into debtors and the state a collection agency.” The national trend is currently against the 10% option because it is ineffective and provides no incentives for defendants to appear in court. When a defendant posts 10% of his bail to the court and then fails to appear, he owes the state the remainder of his bond. At one point under a similar system in Philadelphia, defendants owed $1 billion to the state due to bond forfeitures, nearly all of which was written off because the defendants were judgment-proof. The Coalition notes further that although the bill proposes to return the 10% deposit upon appearance, in actuality, courts will retain the deposit to pay off other debts, such as fines, fees, and restitution. This would turn the bail system into a “funding mechanism” for various programs and cause unnecessary bail amounts to be imposed. Section 3 of the bill largely eliminates the ability of a judge to set bail in misdemeanor cases, which is a necessary tool for judicial discretion. The Coalition has not found any studies to support the idea that Connecticut judges abuse their discretion in setting bail. Moreover, the Coalition believes that the current bail system is one of the most progressive in the country, keeping only 7.6% of defendants in jail pending trial (compared to a rate of 15% in the “reformed” Washington, D.C. system). The Coalition notes that the use of unsecured bonds will eliminate private bail agents in the state, who not only provide revenue and taxes to the state but have financial incentives to return defendants to court. Governor Malloy's objective to use non-financial conditions of release is actually more detrimental to a defendant's rights and restrictive on his liberty. A recent ruling from the Eleventh Circuit Court of Appeals found that equal protection does not require bail to be affordable and the 8th Amendment requires only that it remain reasonable and not excessive. Overall, the Coalition is disappointed with the work of the Sentencing Commission and thinks a better alternative is a bail industry- supported fund whereby bail agents can privately service the indigent criminal population at no cost to the state.

The Surety & Fidelity Association of America-Robert Duke, General Counsel

SFAA, a non-profit whose member companies write the majority of surety bonds in the country, opposes the bill because it restricts the use of surety bail. The SFAA notes that with this new proposal, most defendants will likely just claim an inability to pay, thereby reducing the overall use of such bails. SFAA emphasizes the benefits of surety bail that would otherwise be lost with the use of non-financial restraints: not only does surety bail ensure future court appearance, but bail agents also monitor defendant to avoid defaults and attempt to recover individuals if they fail to appear. The bill proposal is deficient in that it fails to require courts to assess other additional financial sources that might be available to defendants during the bail determination, such as family and friends. The elimination of surety bail will also mean an increase in pre-trial detention as courts will have fewer options to handle a defendant with a moderate risk of nonappearance. SFAA notes the 10% option will harm the public as it eliminates collateral and third party indemnitors that can guarantee payment of the balance. As happened with the use of a partial cash bail system in Philadelphia, defendants failed to appear in court and failed to pay the balance of their bonds to the state. A similar system in Connecticut will impose similar detriments on public finances.

Bail Association of Connecticut

Although BAC agrees that indigent people should not remain incarcerated due solely to their inability to pay, it believes that the bill goes beyond this “laudable goal and attempts to provide a solution to a statistically nonexistent problem.” BAC notes that Connecticut is already viewed as the gold standard for how to handle pretrial detainees and that the data regarding incarcerated indigent people is not accurate. After taking into consideration pending charges, controlling offense, prior criminal record, and previous failures to appear, only five individuals were being held pretrial based on their financial status, not 600 as the Sentencing Commission reported to the governor. Statistics show that surety bail “outperforms” non-surety alternatives by a rate of five to one. BAC also opposes the bill because it will cause Connecticut to lose 1,000 bail industry-related jobs. The 10% option will have the unforeseen consequence of increasing failures to appear.

Bail Association of Connecticut-Andrew Marocchini, President

Marocchini believes the Sentencing Commission's report is based on false data and will have an adverse impact on the state and its taxpayers. The Association has proposed the creation of a non-profit organization to be funded by the bail industry and designed to provide support for the pretrial release of truly indigent defendants. This proposal would involve all relevant stakeholders in the criminal justice system and would impose no cost to the public.

Bail Association of Connecticut- Drew Bloom, Member

Bloom, a licensed bail bondsmen and bail enforcement agent for over twenty years stands in opposition to the bill because he believes that Connecticut is not actually incarcerating individuals simply because they are poor. Reports given to the judiciary committee and statistics from the Department of Corrections' website have debunked this assertion. Bloom notes that Connecticut should “not be light on crime”, and that violent offenders with misdemeanor charges in addition to felony offenders are continuously released. Statistics demonstrate that the surety bail bond system works, yet the bill would effectively eliminate the bail bond industry and the benefits it provides the state, including the fact that agents track down individuals and bring them to court. Bloom notes that Connecticut is currently the “gold standard” in the nation and many factors go into a bail determination, not just financial status. Bloom repeated BAC's desire to create a bail industry-funded organization to help indigents meet bail but notes that current surety laws have inhibited this proposal. Bloom also suggested that the state implement a pretrial interview process and dismiss cases with nominal damages early on, which would help lower pretrial incarceration rates. Bloom noted that BAC does not oppose the no cash bond for misdemeanor section or the 14-day requirement section because in his experience, if a defendant does not post bail within the first 14 days, he is unlikely to do so. Additional hearings will allow judges to determine if an individual needs to be released.

Dan Toner

Toner, a bail agent for more than twenty years and founder of one of Connecticut's largest bail companies opposes the bill because he believes bail bonds is the only asset a court has to ensure future appearance of defendants at no cost to the public. Toner notes the significant costs imposed on the judicial system and victims when defendants fail to appear in court. Bail serves to remedy this because agents work to track down individuals who do not appear. This bill really benefits the victims of crime. Connecticut is already the “gold standard” and should not use this bill to fix something that does not need to be fixed.

Reported by: Allison Ercolano

Date: April 19, 2017