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Shortly before appointing<\/a> Patrick Griffin to be Connecticut\u2019s chief state\u2019s attorney, Criminal Justice Commission Chair and Supreme Court Justice Andrew McDonald brought up a systemic dilemma involving the state\u2019s money bail system.<\/p>\n McDonald pointed to two recent cases to illustrate the disconnect between the public perceptions of how bond recommendations are made and how they are actually determined.<\/p>\n The first involved a 15-year old Latino boy who was jailed on a $150,000 bond in Stamford<\/a> 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<\/a>, whose bond was set at $50,000.<\/p>\n <\/p>\n <\/p>\n Cases like these, McDonald suggested, feed into the distrust that members of communities of color have of the criminal justice system.<\/p>\n \u201cThere\u2019s a raging debate across the country whether cash bail should even be used, and some states have jettisoned it all together,\u201d McDonald said. \u201cAnd, you know, in a perfect world, it can work well. In an imperfect world, where we all dwell, it can have devastating consequences.\u201d<\/p>\n <\/p>\n In Connecticut, those devastating consequences have, in some cases, meant staying in jail for years<\/a>, awaiting a jury to find someone innocent because they can\u2019t afford to post bail.<\/p>\n 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\u2019s money bail system<\/a>. The result: thousands fewer<\/a> people are held in jail who otherwise might not have been able to purchase their freedom.<\/p>\n \u201cWe had a provision of our constitution that required bail in all cases other than capital cases, and we didn\u2019t have the death penalty, which meant you had bail in every case,\u201d said Alexander Shalom, the senior supervising attorney and director of Supreme Court advocacy for the ACLU of New Jersey. \u201cBut 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.\u201d<\/p>\n Attorneys say the situation is similar in Connecticut, which also allows for a constitutional<\/a> right to bail except in capital cases.<\/p>\n <\/p>\n \u201cThat\u2019s the Connecticut status quo,\u201d said Alex Taubes, a civil rights attorney who appealed an emergency bond reduction motion all the way to the state Supreme Court<\/a> in 2020. \u201cA 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\u2019s just completely unrealistic, and it\u2019s just a de-facto detention order. It\u2019s indistinguishable from no bail at all.\u201d<\/p>\n 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.<\/p>\n 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 <\/a>since its peak in 2008. But unlike in Illinois<\/a>, New Mexico<\/a>, Washington, D.C.<\/a>, Alaska<\/a> and California<\/a>, Connecticut has not eliminated its cash bail system \u2014 and key members of the criminal justice community are not in favor of uprooting it.<\/p>\n <\/p>\n 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.<\/p>\n Lawlor, a former legislator who was chair of the Judiciary Committee from 1995 to 2011, said the for-profit cash bail system \u2014 which, besides the Philippines, is unique to the U.S.<\/a> \u2014 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<\/a>.<\/p>\n \u201cThe No. 1 crime for which people are incarcerated is violation of probation,\u201d said Lawlor, now an associate professor of criminal justice at the University of New Haven. \u201cIf 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\u2019re seeing elsewhere in the country.\u201d<\/p>\n Not for lack of trying. The Connecticut Sentencing Commission is finishing a report detailing alternatives to the state\u2019s 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\u2019t going to give any recommendations that could lead to the end of cash bail in Connecticut.<\/p>\n \u201cWe couldn\u2019t reach an agreement on the proposal,\u201d said Alex Tsarkov, the commission\u2019s executive director.<\/p>\n 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\u2019t high enough.<\/p>\n \u201cThere is not yet a perfect model out there for Connecticut,\u201d Tsarkov said. \u201cIf we had a great model, I think it would be easy to argue in favor of it.\u201d<\/p>\n In March 2013, the Drug Policy Alliance<\/a>, a nonprofit that promotes alternatives to the war on drugs, published a bombshell report<\/a> about New Jersey\u2019s jails. They found that 1,547 people \u2014 12 percent of the entire jail population \u2014 were locked up solely because they couldn\u2019t 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\u2019t scrape together $500. ,<\/p>\n \u201cIt kind of just put numbers to a flawed system that many of us were already aware of but hadn\u2019t really thought through the way that study emphasized,\u201d said Joseph Krakora, New Jersey\u2019s public defender.<\/p>\n After the report came out, Krakora wrote a letter to the state\u2019s chief justice, asking him to set up a committee to review the cash bail system.<\/p>\n The Chief Justice created a joint committee of advocates, defense attorneys and prosecutors. A year later<\/a>, 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.<\/p>\n Krakora said the old system, where a person\u2019s 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.<\/p>\n \u201cOur clients aren\u2019t 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,\u201d said Krakora.<\/p>\n 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\u2019re more likely to show up for your hearings.<\/p>\n So, Krakora said, the cash bail system should only be based on a person\u2019s risk of fleeing.<\/p>\n \u201cBut of course, that\u2019s where the fiction lies, right?\u201d Krakora said. \u201cBecause 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\u2019s going to come to court.\u201d<\/p>\n After the joint task force\u2019s recommendations, legislators got to work. The Democratic legislature had the support of Republican Gov. Christie, whom Shalom said wanted a preventative detention model,<\/a> essentially locking people up pretrial to keep them from committing crimes or avoiding prosecution.<\/p>\n \u201cHis idea was he wanted to be able to say we can now lock up the kingpins, the murderers, the whatever,\u201d said Shalom.<\/p>\n 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\u2019s recommendations faltered.<\/p>\n Having the governor\u2019s 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.<\/p>\n \u201cThere was enough skepticism among some Democrats that it needed to be bipartisan,\u201d he said. \u201cAnd the governor has a lot of sway over the minority party that he is affiliated with.\u201d<\/p>\n That bipartisanship insulated both parties from political pushback when \u2014 not if, said Shalom \u2014 someone inevitably was let out under the preventive detention model and committed a crime that made headlines.<\/p>\n \u201cWhen the first bad case happened, people weren\u2019t going to say, \u2018See? Bail reform,\u2019\u201d Shalom said. \u201cInstead, what people said is, \u2018This is a tragedy,\u2019 or \u2018this was a f-up,\u2019 or both. But, remember, this also happened under the money bail system.\u2019\u201d<\/p>\n It would take three years after voters approved the constitutional amendment for the cash bail system to end.<\/p>\n The system that replaced money bail in 2017 created a new pretrial system<\/a>. Shalom explained it as follows: cops in New Jersey can now either give someone a summons \u2014 a ticket telling you when to go to court \u2014 or serve you a complaint warrant. If you get the warrant, you\u2019re 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.<\/p>\n 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\u2019s a detention hearing, at which they are represented by a lawyer and have a right to discovery \u2014 meaning prosecutors have to share evidence with the defendant\u2019s attorney \u2014 and they have the presumption of release unless they are charged with murder or a crime that carries life imprisonment.<\/p>\n Shalom said prosecutors are successful in arguing for preventative detention about half the time that they try.<\/p>\n Before the shift, Krakora said, judges were using money bail as a means of detaining a person they didn\u2019t want to be let out.<\/p>\n But under New Jersey\u2019s 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.<\/p>\n \u201cThere\u2019s an intellectual honesty that exists in a risk-based system,\u201d Krakora said. \u201cWe\u2019re not doing this fiction of barely talking about how much money it would take to assure his appearance to court.\u201d<\/p>\n Money bail still exists in New Jersey, but it\u2019s much rarer than it used to be. Shalom said judges can only set cash bail if there\u2019s a risk of the defendant not showing up for court. And the prosecutor isn\u2019t allowed to seek a cash bail unless they make the finding first that a defendant can afford it.<\/p>\n Shalom said the list of crimes for which people can be held pretrial is \u201ctoo large.\u201d Every felony is detainable, as are all domestic violence cases, including misdemeanors.<\/p>\n \u201cThat doesn\u2019t mean they will be detained, but they are detainable,\u201d he said.<\/p>\n 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\u2019t afford to go home.<\/p>\n 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.<\/p>\n Just 14 people were held on bail of $2,500 or less<\/a> as of 2020, compared to more than 1,500 in 2012.<\/p>\n But racial disparities are virtually the same. To Shalom, the reasoning is clear: \u201cWe haven\u2019t done anything to address it.\u201d<\/p>\n True change would require reforming other elements of the justice system, including policing, prosecution and disparities in sentencing.<\/p>\n \u201cYou have to be proactive to address racial disparities, and just hoping that they\u2019ll go away when you get rid of one element of unfairness is putting too many eggs in that basket,\u201d he said. \u201cWe did have an unfair system, which was both racially biased and penalized poor people. Now we have a system that\u2019s just racially biased, but doesn\u2019t penalize poor people to the same extent.\u201d<\/p>\n It\u2019s not like Connecticut hasn\u2019t tried to end money bail. When he was governor, Malloy tried to eliminate bail for many misdemeanors<\/a> in 2016, to no avail. In 2017 <\/a>he tried a different tack and advocated for proposals that would have taken a big chunk out of the commercial bond industry in Connecticut.<\/p>\n 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.<\/p>\n \u201dThe opposition from the bail bond industry was super intense,\u201d said David McGuire, the executive director of the ACLU of Connecticut. \u201cThere\u2019s just a huge amount of resources that the bail bonds industry will pour into any push to change or eliminate our cash bail system.\u201d<\/p>\n Legislators ultimately compromised<\/a> 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.<\/p>\n Two years later, a committee of Superior Court judges voted<\/a> 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.<\/p>\n The reforms took a significant chunk out of the commercial bail industry\u2019s income.<\/p>\n \u201cWe need a volume of good and bad transactions in order to remain solvent,\u201d said Andrew Marocchini, the founder and general manager of BailCo Bail Bonds. \u201cAnd essentially, what has been done is, the good part of these transactions has been removed from our marketplace.\u201d<\/p>\n 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.<\/p>\n What\u2019s more, data suggests defendants who post the 10 percent option don\u2019t show up to court less than other defendants and are rearrested at slightly lower rates than defendants posting through professional sureties.<\/p>\n 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.<\/p>\n As the number of all pre-trial detainees has increased since the pandemic, those held on the highest bond \u2014 more than $100,000 \u2014 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.<\/p>\n Some people are still staying locked up in jail for years, waiting for a trial.<\/p>\n At least two Black men charged with murder have been acquitted by juries over the past year. Brandyn Grant-Ford<\/a> 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<\/a> not guilty in a fatal 2012 shooting. Atkinson spent almost five years in jail on a $1 million bond.<\/p>\n \u201cMost murder case defendants are not out on bond,\u201d said Attorney John Gulash, who represented both men. \u201cBut 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.\u201d<\/p>\n Grant-Ford, Atkinson and others with bonds they can\u2019t 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.<\/p>\n \u201cA 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,\u201d said Jewu Richardson, co-director of the CT Bail Fund. \u201cYou’re telling people that, ‘Hey, if you want to defend yourselves adequately, you have to pay the ransom of a bond.’\u201d<\/p>\n McGuire said the reforms were well-intentioned but not as successful as advocates had hoped. Despite the changes, just like in New Jersey, people \u2014 disproportionately minorities \u2014 are still sitting in jail because they can’t afford to bond out, McGuire said.<\/p>\n \u201cWe as advocates, and a lot of folks, looked at it as a building block for eventually ending cash bail entirely in Connecticut,\u201d McGuire said, \u201cand 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.\u201d<\/p>\n 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\u2019s already wide racial disparities in its incarcerated population, which as of May 1 <\/a>was 42 percent Black.<\/p>\n \u201cI always have to be concerned that Black and brown people will continue to get the brunt of an unjust system,\u201d said Barbara Fair, a member of Stop Solitary CT.<\/p>\n 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<\/a> in prisons and reforming policing<\/a> in the wake of George Floyd\u2019s murder. He has gotten major criminal justice bills through the legislature and to the governor’s desk for years.<\/p>\n But political success is one thing. Achieving policy change \u2014 and reducing the criminal justice system’s disparate impact on minorities \u2014 is another. The criminal justice system seems to course-correct itself<\/a>, 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<\/a> in racism<\/a>.<\/p>\n “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?’\u201d<\/p>\n Winfield isn’t against ending money bail. \u201cEverything to me is dependent upon what we do in its place,” he said.<\/p>\n\n A new system, familiar disparities <\/strong>
\n <\/h2>\nHow it works<\/h2>\n
\n An attempt at change<\/strong>
\n <\/h2>\n\n The roadblocks<\/strong>
\n <\/h2>\n