David McGuire: Connecticut Moves to Reform Cash Bail System for Low-level Defendants

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Connecticut Moves to Reform Cash Bail System for Low-level Defendants

Posted Feb. 3, 2016

excerpt of speech by David McGuire, legislative and policy director of the ACLU of Connecticut, speaking at Yale Law School "Pay or Stay" forum, recorded and produced by Melinda Tuhus

On Jan. 27, the Connecticut chapter of the ACLU held a forum at Yale Law School, titled, "Pay or Stay," a reference to Connecticut's system of cash bail that, if a defendant can't pay it, requires that person to stay in jail while awaiting a resolution to their case. That resolution, in almost all cases, is a plea deal rather than a trial, and data reveals that defendants who are held in jail have worse outcomes than those who are free on bond or released on their own recognizance.

One of the speakers at the forum was David McGuire, legislative and policy director of the ACLU of Connecticut. Other presenters included state Sen. Gary Winfield of New Haven who has been at the forefront of criminal justice reform in the state legislature, and Mamie Smith, a New Haven bail bondswoman.

In this excerpt of McGuire's talk, he explains the system as it currently exists and outlines the changes that have occurred over time that have made the issue of bail one of discrimination against poor defendants. He also talks about the availability of technology, such as electronic ankle bracelets, that should make it easier to release low-level defendants without requiring them to post bail. In the subsequent discussion, however, two audience members spoke forcefully against requiring such persons to wear electronic tracking devices, labeling that a serious invasion of privacy, a sentiment that McGuire agreed with, but was unavailable to provide further comment. The day after the forum, Connecticut Gov. Dannel Malloy proposed the elimination of cash bail for persons arrested for misdemeanors, as part of what he calls his Second Chance Society program 2.0, following a series of earlier criminal justice reforms passed in 2015.

DAVID MCGUIRE: Just to explain a little bit of background on bail, which I think will be helpful to understand and frame the issue. We in Connecticut, like almost every other state, have a cash bail system, which means there’s a bail that’s set, which if you can come up with that, you’ll be released. And the reason that bail is used in the U.S. is primarily to ensure that you’ll come back to court. You come back on the date of a hearing or a trial, and when you come back, you get that money back. So the idea is, I did a bad thing. The powers that be look at various factors to determine how much of a risk I am, they set that number and if I come up with it, I give that over to the court and I can go home. And that money is to ensure I come back.

What happens in a lot of cases – (state) Sen. Winfield referred to the 1,100 or so people who are in jail today for less than $50,000. Those people can not come up with the $50,000. What typically happens at that next stage is people will go to a professional bail bondsperson, like Ms. Smith, and say, I can’t come up with the money. What can you do for me? And typically what they’ll do is say, We’ll take 10 percent or somewhere in that neighborhood, and the bail bondsperson will post what is a bond, which they’re telling the court, If David doesn’t show up, you’re going to be responsible for it.

That system works well for certain groups of people. It does not work well for people that are poor. What we’re seeing is there are people in Connecticut being held unnecessarily; they don’t pose a flight risk; they have no money; and they not a risk for violence. Many of these are misdemeanors; people who have misdemeanors really shouldn’t be in jail at the cost of $120 a night.

So what we’re trying to do is reform the system and make it work as intended. And I’m going to give a really brief bit of background. Mel Medina has done a lot of really great work. Aside from organizing people, he’s done a lot of digging into the history of bail, which I think kind of frames well where we’re at and where we need to get back to. So, in the 1960s there was a big reform effort in the U.S. It started at the federal level and then trickled down to the state level – where there was a push to find non-financial terms to secure appearance in court, so to find a way to make sure people would come back, and try not to use money if possible. So those are alternatives to cash; so that might be a curfew, or a certain check-in with a supervisory officer. And that worked really well.

Fast-forward 20 years to the 1980s when the tough-on-crime era was starting, and there was a push at the federal level, which was successful, to make bail into a system where you’re trying to keep bad guys off the streets. Keep in mind, people at the point where you’re getting bail or bonded out, you’ve just been charged with a crime, not convicted. You’re presumed innocent, supposedly. What we found was jails started to fill up and the bail bond industry started to flourish, because there was this real opportunity – you know, it’s a business, and to make some money off this situation.

What ultimately has happened is it really falls down to the judge or the judicial district that you’re in in Connecticut. Many public defenders have told me that whether their client gets out on a reasonable or doable bail depends on what judge is sitting, the prosecutors – there’s a lot of factors that play into it beyond just this list on the fact sheet we sent around; there’s this list of criteria to be weighted. They are used, and we happen to have some of the best criteria in the country, but the reality is there is a lot of human input into that, and we find that people are being held unnecessarily, and we want to try to fix that. And what we think at the ACLU is the best way to do that is to go back to the 1960s model of finding alternatives to cash bail. And now we have a lot of technology that we didn’t have in the 1960s. We have ankle bracelets, so if the state was to provide a monitor for someone, you can pretty well know they’re not going to run away – these people don’t have any substantial funds; they’re not going to be fleeing to a country far away that doesn’t have extradition, and you can make sure they come back, without disrupting their lives.

So, a couple of quick stats and then I’ll cede the microphone. Thirty-three point eight percent of the people in Connecticut jails today could get out for $5,000 or less, so that’s a pretty small amount. And typically if your bail is set at $20,000 or less, you have not been charged with a violent crime, and you pose very little flight risk. It costs right around $50,000 a year to house someone in a Connecticut jail. We have a unified jail and prison system, and it’s all run by the State of Connecticut, and it costs a lot of money to keep people in there, and obviously they don’t benefit from sitting in jail. On top of that, it becomes very difficult to meaningfully assist their attorneys in fighting their case. Most of these cases that we’re talking about – the $5,000 bail or less – these are crimes that are on the lower criminal docket, and that docket last year, less than 100 of the cases went to trial, meaning that almost everything is thrown out or plea-dealed. And that’s largely because when you’re held in jail and you have no chance of getting out because you don’t have the $5,000 – or $500 to make bond with a bail bondsman – you’re going to do whatever you need to to get out. Your life’s been disrupted; you want to get back to your family; back to your job; and hopefully you won’t lose your apartment. So we find that people are taking plea deals, sometimes when they’re innocent or sometimes when there’s trumped up charges that they could have helped their attorney fight or defend more vigorously. So we believe that this broken bail system is actually counter-productive on many levels, one of which is prosecutors are not trying cases as they’re supposed to. Our criminal justice system is not working as it was intended.

For more information, visit the ACLU of Connecticut at acluct.org to see events planned around bail reform.