To bail or not to bail? Sentencing Commission mulls constitutional amendment
Real estate heir and accused killer Robert Durst, who fled Galveston, Texas, in 2001 after posting a quarter million dollars bail, was quoted years later saying that "of course" somebody charged with murder should not be released on bail.
He said, "Goodbye $250,000. Goodbye jail. I'm out."
Proponents of reforming the bail system cite Durst's case as an example of a failed system.
The Connecticut Sentencing Commission, made up of top officials in the Judicial Branch, Division of Criminal Justice and others involved with the criminal justice system, is working on a proposal to allow authorities to deny release altogether for high-risk defendants and deny detention of lower risk offenders who lack the funds to post bond. About 25 percent of Connecticut's prison population is made up of people who are being held pretrial, or while their court cases are pending.
"There's a lot of interest in ensuring that release and detention decisions are not decided by the amount of money the defendant has," said Alex Tsarkov, executive director of the Sentencing Commission. "There's a lot of interest in that and in ensuring that dangerous defendants are detained."
Such sweeping changes would require amending the state constitution in a future general election. For that to happen, the commission must approve the recommended changes and submit them to the General Assembly for lawmakers' consideration and approval.
Connecticut has already started down the path of bail reform. A new law that took effect Oct. 1 prohibits bail for those accused of most nonviolent misdemeanor offenses. Judges still have the discretion to impose bail for those accused of misdemeanor domestic violence cases, those who have a history of failing to appear in court, those who are judged to be flight risks and those who attempt to obstruct justice, threaten a witness or engage in conduct that threatens the safety of himself, herself or others.
The law requires that those who are being held in lieu of bond be presented in court for a bond review hearing within 14 days of their first court appearance and prohibits judges from setting cash-only bonds.
A constitutional amendment could go further by releasing the majority of defendants under the supervision of the Judicial Branch's Court Support Services Division, whose bail commissioners already have pretrial involvement with defendants through monitoring and diversionary programs. High-risk defendants who are detained could be held without bail, similar to the system used in the federal system.
The bail reform advocates say those who have money, like Durst, are able to get out of prison while awaiting trial, but the fact that they posted bail doesn't ensure public safety. Just last month, a man in Northern California went on a shooting rampage while out on bond for stabbing a neighbor with a steak knife and assaulting a second person.
Those in favor of bail reform say the system has the opposite effect for the poor, who lack money to post bail and remain incarcerated even when charged with relatively minor crimes. They say the poor defendants often lose their jobs or housing and are set up to fail again once they are released.
"Even a few days in jail makes a low-risk person a higher risk person and likely to commit crimes in the future," said John Santa, founder of the Malta Justice Initiative and vice chairman of the Sentencing Commission, at an October symposium.
Road trip to N.J.
At a Dec. 11 public hearing, members of the state's bail bonds industry, which could be decimated if the reforms are enacted, cited mass confusion in states that have enacted similar reforms, including New Jersey, the District of Columbia and New Mexico.
Daniel Toner, vice president of the Bail Association of Connecticut, said the amendment would decrease public safety and increase the prison population. He said the public has been misled to believe it is safer due to lower crime levels and decreased prison populations. In Connecticut, he said, there are 44,000 active arrest warrants for offenders who were released without bail while their court cases are pending.
"If only a small percentage of those warrants were served, prison population would be increasing," he said.
Members of the Sentencing Commission traveled to New Jersey to study that state's new system and invited officials from states that have passed reforms to a day-long symposium in October. The commission chairman, Superior Court Judge Robert Devlin, said during the October symposium that New Jersey's reforms are bold but not easy to implement. He said Connecticut does a good job with the system it has, providing many pretrial defendants with drug testing and treatment and other services. Devlin said about 14 percent of defendants fail to appear in court, which compares favorably to national averages, and that just having the bail commission office send a reminder letter to those who miss their court dates works 40 percent of the time.
While introducing the guest speakers at the October symposium, Devlin asked members of the audience to consider a "fundamental question."
"Would Connecticut be a better state, a fairer state, a more just state and a safer state if we made our bail system different?"
Devlin said he doesn't underestimate the difficulties Connecticut would have if it moved from a bail bond system to a different system.
"But if the idea is really good and would make us a better state, it's worth it," he said.
What is bail?
Sometimes referred to as "money bail," it is the bond amount set by police, court staff or judges to make sure that a person goes to court or returns to court if they are released after they have been arrested.
Who is eligible for bail?
Connecticut's State Constitution provides that everyone charged with a crime has the right to be released on bail upon providing "sufficient security," or putting up the appropriate amount of money to ensure a person's court state. The law does not apply in capital offenses, but Connecticut abolished its death penalty in 2012.
What are the types of bail?
Surety bonds: The court requires cash, real estate, or a professional bondsperson's signature as collateral before releasing the defendant back into the community. The court may allow the defendant to post 10 percent of the bond in cash to secure his or her release.
Non-surety bonds: Sometimes referred to as releasing a person "on their own recognizance," the defendant is not required to post cash or property, but is asked to sign a written promise to appear in court, also known as a PTA.
(Source: Connecticut Judicial Branch)
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