Why Connecticut hasn’t followed other states in ending cash bail system

The first involved a 15-year old Latino boy who was jailed on a $150,000 bond in Stamford for allegedly having an inappropriate sexual relationship with an 11-year-old. The other featured a white attorney in Litchfield County charged with first-degree manslaughter with a firearm, whose bond was set at $50,000.

Cases like these, McDonald suggested, feed into the distrust that members of communities of color have of the criminal justice system.

“There’s a raging debate across the country whether cash bail should even be used, and some states have jettisoned it all together,” McDonald said. “And, you know, in a perfect world, it can work well. In an imperfect world, where we all dwell, it can have devastating consequences.”

In Connecticut, those devastating consequences have, in some cases, meant staying in jail for years, awaiting a jury to find someone innocent because they can’t afford to post bail.

One of the states that has scrapped cash bail is New Jersey. The legislature, with the backing of then-Republican Gov. Chris Christie, passed a bill in 2014 that largely eliminated the state’s money bail system. The result: thousands fewer people are held in jail who otherwise might not have been able to purchase their freedom.

“We had a provision of our constitution that required bail in all cases other than capital cases, and we didn’t have the death penalty, which meant you had bail in every case,” said Alexander Shalom, the senior supervising attorney and director of Supreme Court advocacy for the ACLU of New Jersey. “But it was a totally ephemeral because courts did not interpret it to mean that you had a right to a bail that you could afford. It was just that you had a right to bail.”

Attorneys say the situation is similar in Connecticut, which also allows for a constitutional right to bail except in capital cases.

“That’s the Connecticut status quo,” said Alex Taubes, a civil rights attorney who appealed an emergency bond reduction motion all the way to the state Supreme Court in 2020. “A lot of times, bails are set at levels where you might as well add a zero or two zeroes or three zeroes to it, because it’s just completely unrealistic, and it’s just a de-facto detention order. It’s indistinguishable from no bail at all.”

New Jersey voters approved a constitutional amendment in 2014, largely ending cash bail and transitioning the state to a risk-based pretrial system. Three years later, Connecticut legislators compromised with the powerful commercial bail industry and preserved elements of the cash bail system.

Connecticut has been touted as a leader in criminal justice reform, becoming the first state in the U.S. to cut its incarcerated population in half since its peak in 2008. But unlike in Illinois, New Mexico, Washington, D.C., Alaska and California, Connecticut has not eliminated its cash bail system — and key members of the criminal justice community are not in favor of uprooting it.

As the point person on criminal justice policy for former Gov. Dannel P. Malloy, Michael Lawlor was among those who led the charge to end money bail in 2017.

Lawlor, a former legislator who was chair of the Judiciary Committee from 1995 to 2011, said the for-profit cash bail system — which, besides the Philippines, is unique to the U.S. — pressures people to plead guilty to get out of jail. Often, Lawlor said, they agree to a sentence of probation and, ultimately, get trapped in the criminal justice system.

“The No. 1 crime for which people are incarcerated is violation of probation,” said Lawlor, now an associate professor of criminal justice at the University of New Haven. “If I had the power to do one thing to improve the criminal justice system, I would eliminate money bail. That is one thing that is almost unique about the United States, and where Connecticut is falling a little bit behind the curve of reforms that you’re seeing elsewhere in the country.”

Not for lack of trying. The Connecticut Sentencing Commission is finishing a report detailing alternatives to the state’s cash bail system. Despite broad agreement that the money bail system can keep poor people locked up who otherwise would be able to go home if they had the money to bond out, members aren’t going to give any recommendations that could lead to the end of cash bail in Connecticut.

“We couldn’t reach an agreement on the proposal,” said Alex Tsarkov, the commission’s executive director.

One of the issues is that there are criticisms of the systems in every state that has abolished money bail, Tsarkov said; maybe the list of crimes for which someone can be detained pretrial is too wide-ranging, or the legal bar to keep people detained pretrial isn’t high enough.

“There is not yet a perfect model out there for Connecticut,” Tsarkov said. “If we had a great model, I think it would be easy to argue in favor of it.”

A new system, familiar disparities

In March 2013, the Drug Policy Alliance, a nonprofit that promotes alternatives to the war on drugs, published a bombshell report about New Jersey’s jails. They found that 1,547 people — 12 percent of the entire jail population — were locked up solely because they couldn’t afford to post a bond of $2,500 or less. About 800 of those people, none of whom had been convicted of their crimes, couldn’t scrape together $500. ,

“It kind of just put numbers to a flawed system that many of us were already aware of but hadn’t really thought through the way that study emphasized,” said Joseph Krakora, New Jersey’s public defender.

After the report came out, Krakora wrote a letter to the state’s chief justice, asking him to set up a committee to review the cash bail system.

The Chief Justice created a joint committee of advocates, defense attorneys and prosecutors. A year later, their recommendation was unanimous: move away from cash bail and instead move toward a risk-based model, where people are held pretrial based on the likelihood their release poses a danger to the community.

Krakora said the old system, where a person’s likelihood of getting out of jail was tied to how much money they had, did not make a person any more likely to show up to court, supposedly its foundational premise.

“Our clients aren’t any more likely to come back to court because grandma put up a thousand bucks than if they were just released and told to report to court by the judge,” said Krakora.

The cash bail system is premised on the risk of flight, said Krakora. The idea, he explained, is that if you have to pay money to get out of jail, and getting that money back is dependent on you coming back to court, then you’re more likely to show up for your hearings.

So, Krakora said, the cash bail system should only be based on a person’s risk of fleeing.

“But of course, that’s where the fiction lies, right?” Krakora said. “Because the judge is obviously going to set a higher bail if he or she is concerned that this person is likely to go out and shoot people or rob people or rape people if you let them out before trial. It has nothing to do with whether he’s going to come to court.”

After the joint task force’s recommendations, legislators got to work. The Democratic legislature had the support of Republican Gov. Christie, whom Shalom said wanted a preventative detention model, essentially locking people up pretrial to keep them from committing crimes or avoiding prosecution.

“His idea was he wanted to be able to say we can now lock up the kingpins, the murderers, the whatever,” said Shalom.

Christie was so supportive of doing away with money bail, Shalom said, that he called legislators in for a joint special session when the bill based on the task force’s recommendations faltered.

Having the governor’s support was invaluable, said Shalom. There was concern that doing away with money bail would threaten public safety, or would actually worsen racial disparities of the incarcerated population.

“There was enough skepticism among some Democrats that it needed to be bipartisan,” he said. “And the governor has a lot of sway over the minority party that he is affiliated with.”

That bipartisanship insulated both parties from political pushback when — not if, said Shalom — someone inevitably was let out under the preventive detention model and committed a crime that made headlines.

“When the first bad case happened, people weren’t going to say, ‘See? Bail reform,’” Shalom said. “Instead, what people said is, ‘This is a tragedy,’ or ‘this was a f-up,’ or both. But, remember, this also happened under the money bail system.’”

It would take three years after voters approved the constitutional amendment for the cash bail system to end.

How it works

The system that replaced money bail in 2017 created a new pretrial system. Shalom explained it as follows: cops in New Jersey can now either give someone a summons — a ticket telling you when to go to court — or serve you a complaint warrant. If you get the warrant, you’re taken to the police station and receive a preliminary risk assessment. You are locked up for 24 to 48 hours before appearing in front of a judge for a release hearing, where the judge assesses if you can be released on your own recognizance and on what conditions.

Prosecutors can seek preventative detention if a judge decides to release someone they think is dangerous. If prosecutors try to keep someone locked up pretrial, they could be held for up to five more days before there’s a detention hearing, at which they are represented by a lawyer and have a right to discovery — meaning prosecutors have to share evidence with the defendant’s attorney — and they have the presumption of release unless they are charged with murder or a crime that carries life imprisonment.

Shalom said prosecutors are successful in arguing for preventative detention about half the time that they try.

Before the shift, Krakora said, judges were using money bail as a means of detaining a person they didn’t want to be let out.

But under New Jersey’s new system, lawyers in court hearings are arguing over whether a person poses a risk to the community, what their prior record is, when was the last time they were charged with a crime.

“There’s an intellectual honesty that exists in a risk-based system,” Krakora said. “We’re not doing this fiction of barely talking about how much money it would take to assure his appearance to court.”

Money bail still exists in New Jersey, but it’s much rarer than it used to be. Shalom said judges can only set cash bail if there’s a risk of the defendant not showing up for court. And the prosecutor isn’t allowed to seek a cash bail unless they make the finding first that a defendant can afford it.

Shalom said the list of crimes for which people can be held pretrial is “too large.” Every felony is detainable, as are all domestic violence cases, including misdemeanors.

“That doesn’t mean they will be detained, but they are detainable,” he said.

The tradeoff of making that many crimes detainable offenses was the political price for abolishing cash bail, said Shalom. Advocates pushing for reform decided it was worth a preventative detention model if it meant thousands of people would be let out of jail who otherwise couldn’t afford to go home.

Krakora said the effects have been significant. There are 40 percent fewer people, on average, in pretrial detention since the law went into effect. Some counties are closing their jails.

Just 14 people were held on bail of $2,500 or less as of 2020, compared to more than 1,500 in 2012.

But racial disparities are virtually the same. To Shalom, the reasoning is clear: “We haven’t done anything to address it.”

True change would require reforming other elements of the justice system, including policing, prosecution and disparities in sentencing.

“You have to be proactive to address racial disparities, and just hoping that they’ll go away when you get rid of one element of unfairness is putting too many eggs in that basket,” he said. “We did have an unfair system, which was both racially biased and penalized poor people. Now we have a system that’s just racially biased, but doesn’t penalize poor people to the same extent.”

An attempt at change

It’s not like Connecticut hasn’t tried to end money bail. When he was governor, Malloy tried to eliminate bail for many misdemeanors in 2016, to no avail. In 2017 he tried a different tack and advocated for proposals that would have taken a big chunk out of the commercial bond industry in Connecticut.

The policies would have barred judges from setting bond in most misdemeanor cases and allowed judges to release defendants on a cash deposit of 10 percent of the bond. The cash they would have had to put down was similar to the fee charged by bail bond agents, except defendants would have gotten that money back had they showed up to court.

”The opposition from the bail bond industry was super intense,” said David McGuire, the executive director of the ACLU of Connecticut. “There’s just a huge amount of resources that the bail bonds industry will pour into any push to change or eliminate our cash bail system.”

Legislators ultimately compromised with the bondsmen, barring judges from imposing cash-only bail, a practice that effectively denies bail to hundreds of indigent and moderate-income defendants, and from setting bail in most misdemeanor cases.

Two years later, a committee of Superior Court judges voted to allow criminal defendants to bond out by posting 10 percent of their bond if the total amount is $20,000 or less. Unlike if they use a bail bondsman, they get the money back once their case is resolved.

The reforms took a significant chunk out of the commercial bail industry’s income.

“We need a volume of good and bad transactions in order to remain solvent,” said Andrew Marocchini, the founder and general manager of BailCo Bail Bonds. “And essentially, what has been done is, the good part of these transactions has been removed from our marketplace.”

By the end of 2021, almost two full years since the rule change went into effect, one in four defendants released from custody at a police department got out by posting 10 percent of their bond. Professional surety companies, which were responsible for over 80 percent of financial releases in 2019, now make up only 45 percent of releases, according to data reported by the Sentencing Commission.

What’s more, data suggests defendants who post the 10 percent option don’t show up to court less than other defendants and are rearrested at slightly lower rates than defendants posting through professional sureties.

The Judicial Branch estimated $1.75 million has been returned to defendants between Jan. 1, 2020 and Jan. 5, 2022 through the 10 percent rule.

As the number of all pre-trial detainees has increased since the pandemic, those held on the highest bond — more than $100,000 — have accounted for a greater portion of them. In January 2020, about 55 percent of all pretrial detainees had bond over $100,000, and by January 2020, the percentage had increased to 62 percent.

Some people are still staying locked up in jail for years, waiting for a trial.

At least two Black men charged with murder have been acquitted by juries over the past year. Brandyn Grant-Ford spent four years in prison waiting for his trial, unable to post his $500,000 bond. A jury found him not guilty of murder last August. In May, a jury found Hakeem Atkinson not guilty in a fatal 2012 shooting. Atkinson spent almost five years in jail on a $1 million bond.

“Most murder case defendants are not out on bond,” said Attorney John Gulash, who represented both men. “But not because they’re necessarily at higher risk of flight. It’s just kind of a bit of a reaction to the gravity of the charge.”

Grant-Ford, Atkinson and others with bonds they can’t afford often face an agonizing choice: post bond and, if you use a bail bondsman, never see that money again, or use that money to hire a private attorney but stay jailed.

“A lot of people don’t have bail money. So, that’s one strike against them. They’re incarcerated, sitting in pretrial, fighting their cases while they’re inside,” said Jewu Richardson, co-director of the CT Bail Fund. “You’re telling people that, ‘Hey, if you want to defend yourselves adequately, you have to pay the ransom of a bond.’”

McGuire said the reforms were well-intentioned but not as successful as advocates had hoped. Despite the changes, just like in New Jersey, people — disproportionately minorities — are still sitting in jail because they can’t afford to bond out, McGuire said.

“We as advocates, and a lot of folks, looked at it as a building block for eventually ending cash bail entirely in Connecticut,” McGuire said, “and figuring out a way to have preventative detention that is used sparingly and in a way that does not exacerbate our racial inequities in the state.”

The roadblocks

McGuire’s fears about preventative detention are one of the challenges to ending cash bail in Connecticut: that whatever replaces it will disproportionately impact people of color, worsening the state’s already wide racial disparities in its incarcerated population, which as of May 1 was 42 percent Black.

“I always have to be concerned that Black and brown people will continue to get the brunt of an unjust system,” said Barbara Fair, a member of Stop Solitary CT.

As co-chair of the Judiciary Committee, Sen. Gary Winfield has played a major role in passing significant criminal justice reforms in recent years, including reducing solitary confinement in prisons and reforming policing in the wake of George Floyd’s murder. He has gotten major criminal justice bills through the legislature and to the governor’s desk for years.

But political success is one thing. Achieving policy change — and reducing the criminal justice system’s disparate impact on minorities — is another. The criminal justice system seems to course-correct itself, Winfield said, always ensnaring people in its grip, no matter what Winfield and his legislative colleagues do. The weary legislative tactician wondered if that course correction was because lawmakers always start from the perspective that the system is deserving of reform, as if the origins of mass incarcerated weren’t rooted in racism.

“You’re saying, ‘Well, clearly, it’s been exposed that this system has a disparate impact on people. Is there something we can do to make the system have less of a disparate impact, make it work a little better?'” Winfield said. “But that’s not the same thing as saying, ‘Should we be doing what we’re doing at all?’”

Winfield isn’t against ending money bail. “Everything to me is dependent upon what we do in its place,” he said.

The element that was so essential to the elimination of cash bail in New Jersey — bipartisan support — doesn’t exist in Connecticut.

Sen. John Kissel, R-Enfield and ranking member of the Judiciary Committee, said he hasn’t heard any concerns from constituents about the state’s money bail system. He said the purpose of bail is to make sure someone comes to court and faces their charges, and though they are innocent until proven guilty, Kissel thinks their likelihood of committing more crimes should be factored into their bond amount.

“The ultimate primary purpose of bail is not to keep someone incarcerated because they may commit another crime, but if they have a track record, I think it’s appropriate for the court or whoever is imposing the bail to consider those factors,” Kissel said. “We have to create a good balance where the bail system fulfills its appropriate ends, with also an eye toward maintaining public safety, and at the same time do whatever we can within reason to make sure no one is unjustly incarcerated pending their trial, simply because they’re poor.”

Any shift from a cash bail system in Connecticut would require a constitutional amendment, a high legislative bar that likely would require support from members of both parties.

Bipartisan support would also provide political insulation when someone inevitably commits a crime after being released following an arrest. Without bipartisan support, bail reform would be a political lightning rod wielded as a cudgel against those who voted for it.

Reform in New York, for instance, has been highly politicized, despite data suggesting that it’s working.

New York City Mayor Eric Adams, police, and tabloid newspapers have decried the new policies, depicting a city in chaos. Figures published by the New York City Comptroller showed that, while reforms reduced the number of people subjected to bail, there was no change in the share of people rearrested while awaiting trial in the community. However, bail continues to be a big reason for pretrial detention and continues to take money from low-income communities of color.

Despite Adams’ public statements, his Office of Criminal Justice published data showing most of the people arrested in the city do not have pending cases.

Of the nearly 48,000 people in March 2021 waiting at home for their criminal cases to be resolved, 96 percent were not rearrested at all during that month, and only 1 percent were rearrested for a violent felony offense, according to New York criminal justice data.

And yet, almost two-thirds of New Yorkers think bail reform led to an increase in crime, an indication that the fear-mongering over reform is souring the public’s understanding and support for it.

Critics of the money bail system point out that it doesn’t prevent crime. Dangerous individuals with access to financial resources can simply post bail and go home, while less-dangerous people who don’t have money stay stuck in jail.

Even members of the bail bonds industry say that Connecticut’s current bail system wasn’t created to protect public safety.

“It was designed to guarantee appearance in court and guarantee the defendant’s pretrial liberty,” said Jeff Clayton, executive director of the American Bail Coalition.

Just like when the public clamors for change when someone commits a crime after getting out of jail thanks to bond reform, Lawlor predicted that, eventually, someone is going to commit a crime after posting bail.

“Sooner or later, some guy who was able to post a million dollar bond is going to kill somebody while he’s out,” Lawlor said. “And then people are going to say, ‘why was that guy out?’ And the answer is going to be, ‘Well, because in Connecticut, you can’t hold a person without bail, because of what our state constitution says.’”

It already happened.

Russell Peeler was out on bail when he killed Rudolph Snead Jr. in a barbershop in 1998. And he was out on bail when he masterminded the deaths of Karen Clarke and her 8-year-old son, Leroy Brown Jr., who had been set to testify against him for trying to kill Snead the year prior.

Mary Anne Casey, owner of Casey Bail Bonds, Inc. who has been licensed in Connecticut for more than four decades, claimed in legislative testimony in 2011 that Peeler got out of jail prior to getting his brother to kill Brown and Clarke thanks to a widespread practice known as “rebating,” which is when defendants post bond at a discounted rate through a deal struck with a bail bondsman.

“Our legislature just turned a blind eye,” Casey said.

More recently, Jose Cajigas allegedly fired a gun at a Hartford police officer a few hours after allegedly murdering a Hartford woman. He’d been arrested 11 days earlier on probation violation, weapons and drug charges. He paid $19,000 in cash on a $270,000 bond and was able to get out of jail. Department of Correction records indicated he is still incarcerated pretrial, held on a $7,520,000 bond.

“Gun violence is a complex thing with many causes, but there’s no question that we’re missing opportunities to keep repeat violent criminals from committing further acts of violence,” said Hartford Mayor Luke Bronin.

The mayor raised another point: defendants can reach agreements with bail bondsmen to post bond.

“I think a lot of people look at a bond and say, ‘Wow, how is somebody going to come up with $200,000 bond?’ But if you only have to come up with 10 percent of that, and particularly if you are involved in criminal activity that can be lucrative, it’s not all that hard,” Bronin said. “Bonds are financeable, and they’re regularly financed.”

Such rebating continues today, Casey said, thanks to an underfunded regulatory system that allows people of means who pose a danger to society to simply buy their way out of jail by posting bail either themselves or through a bondsman at a discounted rate.

“The average person has no idea what is going on,” Casey said. “There is a tremendous public risk here, and no one is paying any attention.”

Steady habits

Cash bail in Connecticut isn’t going anywhere any time soon. The Sentencing Commission is putting the final touches on a report on pretrial justice in Connecticut. The assessment looks at states that have mostly eliminated money bail and describes how a pretrial system without money bail might look.

Public defenders and the Division of Criminal Justice both objected to eliminating money bail in a draft version of the report. Each claimed a different model would have the opposite effect: public defenders claimed that too many people would get stuck in jail; prosecutors claimed that such a system would allow too many people to get out of jail and not be held pretrial.

In an unsigned document outlining the department’s stance, the Office of the Chief Public Defender expressed concerns that eliminating money bail would harm poor communities and communities of color, because poverty exacerbates factors that might make it more likely for a person to be held in jail in a preventative detention system. Plus, the public defenders warned, a preventative detention model might lead to more people being held in jail simply because of the nature of their criminal charge.

“A preventive detention system is likely to result in an increase in certain classes of accused being held at a significantly higher rate, specifically those accused of offenses like domestic violence and animal abuse offenses,” the document reads. “These crimes, while not statistically related to an increase in flight or general risk of reoffense, are emotionally sensitive and likely to lead a prosecutor to request detention. The court system in general is risk averse and judges are likely to grant detention requests in these cases.”

The Division of Criminal Justice, meanwhile, said in a different unsigned opinion that it opposed proposals that excluded certain crimes from a list of detainable offenses, and those that didn’t take into account a defendant’s criminal history, their track record of failing to show up to court and their compliance with past conditions of release like probation.

“Such a system would produce the absurd situation of a Court being unable to detain a person even if the person stood in front of the Court and announced that he or she was not going to appear again,” the document reads. “This model fails to recognize the fact that the risk of financial forfeiture often is sufficient to guarantee an accused’s presence in court while sparing him detention while his case is determined on the merits.”

But there are perhaps practical reasons for the system remaining the way it is, said Tsarkov, the executive director. Judges, prosecutors and public defenders went to law school and have been practicing their whole careers with a money bail system.

“It’s hard to step out and think that anything else remotely even is possible,” said Tsarkov.

Then there’s the matter of public pressure. Tsarkov said there is no statewide campaign to end cash bail, as there was in Illinois, pressuring lawmakers to reimagine the pretrial system.

“We really have not had a grassroots movement to end money bail,” Tsarkov said. “When we think about why this hasn’t happened yet, let’s think about who is affected: what kind of power do they have? Poor people, and poor people of color, don’t have the type of power that middle class and upper-class people have, who can post bond.”

Also, the cash bail system is an effective way of processing cases quickly, said Lawlor. Money bail can be used to pressure someone to plead guilty so they can get out of jail without having to pay anything. All they have to do is plead guilty to get time served or receive a term of probation that they can comply with outside of jail.

“If you want to keep a guy locked up pretrial, you ask for a bail that’s a little bit beyond what this person can post,” Lawlor said. “That way, you know you have leverage to move the case, because the only way the guy’s getting out of jail is to plead guilty.”

There are benefits to quickly resolving cases, in that it keeps the system afloat and gets people out of jail, Tsarkov said, “but it’s the burden that falls on those people without means, because they don’t have the means to purchase their way to freedom.”

Echoing McDonald’s comment at Griffin’s chief state’s attorney interview, Tsarkov acknowledged that the conversation over whether to end cash bail is happening all over the country.

“At some point we have to have this debate,” Tsarkov said. “We can’t escape it forever.”