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Bail Reform: Explained

Illustration by Hisashi Okawa

Bail Reform: Explained


In our Explainer series, Fair Punishment Project lawyers help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines — like bail, civil asset forfeiture, or the Brady doctrine — so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

In San Francisco, 64-year-old Kenneth Humphrey spent a year in jail, held on a $350,000 bond he could not pay, after being accused of entering a man’s home and stealing $7 and a bottle of cologne. In setting Humphrey’s bail amount, the trial court made no inquiry into his ability to pay or any alternatives to cash bail, but instead relied on California’s preset bail schedules.

In January, he experienced hope after the California Court of Appeals granted him a new bail hearing and ordered the judge must consider Humphrey’s ability to pay. In powerful language, the court wrote: “[T]he problem this case presents does not result from the sudden application of a new and unexpected judicial duty. … [I]t stems instead from the enduring unwillingness of our society, including the courts . . . to correct a deformity in our criminal justice system that close observers have long considered a blight on the system.”

The California attorney general promised not to appeal the ruling, but the San Francisco district attorney’s office at first delayed Mr. Humphrey’s bail hearing, arguing that the lower court lacked jurisdiction until the higher court certified the opinion. “Just because the attorney general is not seeking review doesn’t mean that the Supreme Court won’t decide to review on its own.” And in fact, it decided to do just that in Mayjust weeks after a judge finally agreed to Humphrey’s release.

As many as 500,000 people are held around the country in local jails because of their inability to pay bail, mostly for low-level offenses. People held on bail have been accused, but not yet convicted, of crimes. They often are locked up only for inability to pay the amount determined by a judge, frequently based on a preset bail schedule, and not because of an individual assessment based on risk or threat to public safety. If someone is unable to pay bail, he or she remains locked up until his or her case resolves through a plea, until trial is over, or until bail is paid. This can range from days to years.

1. What we know about bail

Nationwide, more than 60 percent of jail inmates are jailed pretrial; over 30 percent cannot afford to post bail. Black and Hispanic defendants are much more likely to be held on bail than white defendants. [Criminal Justice Policy Program / Harvard Law School]

Often, those being held on bail have simply been accused of low-level offenses. Seventy-five percent of pretrial detainees have been charged with only drug or property crimes. [Criminal Justice Policy Program / Harvard Law School]

Being jailed pretrial has collateral consequences: It leads to people losing their jobs, not being able to care for their children, and losing contact with loved ones. Holding people in jail who do not pose a significant safety risk also exacerbates overcrowding, creates unsafe conditions, and places a huge financial burden on taxpayers. [The Price of Freedom / Human Rights Watch]

A study out of Kentucky found that people who are held because they cannot afford bail are 40 percent more likely to commit another low-level offense. In other words, jailing people who cannot pay bail is criminogenic. [The Hidden Costs of Pretrial Detention]

We also know that people are more likely to be acquitted if they pay bail, in part because they are less likely to take plea deals just to get out of jail. Being released before trial closely correlates with a not-guilty verdict, suggesting that the system is not punishing the most guilty, but rather the people who cannot afford to pay for their release. [The Atlantic / Bouree Lam] [Pretrial Justice Institute]

One study suggests that those people are “over three times more likely to be sentenced to prison” and “over four times more likely to be sentenced to jail” than those who are not detained pretrial. [Criminal Justice Policy Program / Harvard Law School]

Similarly, a study out of Columbia Law School found “significant evidence of a correlation between pretrial detention and both conviction and recidivism.” [The Heavy Costs of High Bail / Arpit Gupta et al.]

Meanwhile, there are costs to taxpayers as well. Incarcerating individuals awaiting trial costs taxpayers $13.6 billion each year. [Prison Policy Initiative] There are effective, low-cost ways of ensuring that defendants appear at trial, including a simple notification system that reminds people of their court dates. [Court Appearance Notification System: Evaluation Highlights / Multnomah County]

2. The Role of the Bail Industry

In states and cities that want to reform their use of bail, the biggest obstacle remains the bail bond industry. For-profit bail bonds are legal in almost every state.

Money bail has been taken over by private companies that make profits from those who cannot afford it. Bail bond costs are often covered by family members, which puts an additional financial strain on the already-struggling children of the jailed. [Ella Baker Center / Who Pays?] Many people spent years paying off their bail amounts to private insurers. [Report / Color of Change and ACLU]

There’s some evidence that the bail bonds industry is intentionally intimidating decision-makers to urge them to oppose bail reform. Duane Chapman, star of the reality television series “Dog the Bounty Hunter,” has sat in the front row staring down lawmakers contemplating striking down monetary bail. [Jazmine Ullola / L0s Angeles Times]

Bail bond companies regularly give campaign contributions to prosecutors. Eric Gonzalez, the Brooklyn DA often thought of as a progressive, accepted such contributions. After the media found out about it, he gave the money back. [Carimah Townes / The Appeal] Dallas District Attorney Faith Johnson similarly received $5,385 from 13 bail bond companies and the Texas Bail PAC.

3. A Growing Consensus That America’s Bail System is Broken

A wide range of elected officials, cultural luminaries, criminal justice advocates, fiscal conservatives, and law enforcement organizations agree that the current bail system is broken. Bail reform is possible through legislative and judicial change, and also through policy changes that local prosecutors can make.

The public wants to see change. In Arizona, a poll conducted by the state’s Supreme Court found that two-thirds of those surveyed thought that only those who are a safety risk or unlikely to appear in court should be held for failure to pay bail. [Andrea Kelly / Arizona Public Media]

Eliminating cash bail also has wide support among law enforcement, like Cook County Sheriff Tom Dart and victims’-rights groups like Marsy’s Law for Illinois. [Reuters / Fiona Ortiz]

And it has bipartisan support. Conservative groups are demanding change to the cash bail system. In Ohio, for example, the conservative Buckeye Institute released a report calling the state’s cash bail system an “inefficient, expensive, unfair means of protecting communities that has proven no guarantee to stopping repeat offenders.” [Peter Krouse / Cleveland.com]

Judges are also calling for reform to the bail system, including California’s Chief Justice Tani Cantil-Sakauye and former New York Chief Judge Jonathan Lippman. [Jonathan Lippman / Washington Post]

And celebrities are spreading the word. Athletes like Malcolm Jenkins and Anquan Boldin are advocating against money bail. [Malcolm Jenkins & Anquan Boldin / The Appeal]

And so are musicians like Common and Jay Z. [Shawn Carter / Time]

Two video clips, one from John Oliver’s show, and the other one a mini-documentary from Brave New Films, discuss the problems with the cash bail system.

[Last Week Tonight With John Oliver]

[Debunking Common Bail Myths / Brave New Films]

4. The Role of Prosecutors

Prosecutors have the ability to reduce the use of cash bail. While judges are the ultimate gatekeepers, prosecutors play an important role in the process and can advocate for bail reform, screen cases early, and establish a presumption of recommending release. [Casey Tolan / Slate]

Fair and Just Prosecution (FJP), a group that brings together newly elected local prosecutors to promote “a justice system grounded in fairness, equity, compassion, and fiscal responsibility,” urges all prosecutors to “publicly support the elimination of money bail. DAs should use their bully pulpit to communicate the harms of the money bail system and the need for reform.” [Issues at a Glance: Bail Reform / Fair and Just Prosecution] Miriam Krinsky, executive director of FJP, says: “Common sense dictates that people should not be held in jail simply because they cannot afford a monetary payment.” [Miriam Krinsky / USA Today]

In June 2017, Kim Foxx, the lead prosecutor for Chicago, announced that her office will no longer seek money bail for defendants accused of low level offenses. According to Foxx, “Routinely detaining people accused of low-level offenses who have not yet been convicted of anything, simply because they are poor is not only unjust — it undermines the public’s confidence in the fairness of the system.” [Chicago Tribune / Steve Schmadeke]

Harris County, Texas, District Attorney Kim Ogg supported the elimination of bail for people accused of misdemeanors and wrote a brief from her office supporting the use of pretrial assessments for those accused of low level crimes. [Brief / Kim Ogg’s Office] More than 60 prosecutors from around the country, including Kim Foxx, George Gascon, and Mark Gonzalez signed an amicus brief in support of the plaintiffs in the Harris County litigation. [Brief Amici]

The California attorney general also wrote a brief supporting the elimination of the cash bail system in California. [Brief]

In February 2018, newly elected Philadelphia District Attorney Larry Krasner announced that his office would stop seeking bail on 25 criminal charges, which include retail burglary, prostitution, unauthorized use of a motor vehicle, resisting arrest, providing false identification to law enforcement, and many drug offenses. [Alec Ward / Reason]

During the primary in Bexar County, Texas,  Democratic candidate Joe Gonzales stressed the need to reform cash bail and “even the scales of justice” “so that people who commit minor offenses don’t stay in jail because they don’t have enough money to post bond.” He handily beat incumbent Nico LaHood in the primary. [Elizabeth Zavala / My San Antonio] Interim Contra Costa District Attorney Diana Becton has also expressed support for bail reform. [Sukey Lewis / KQED]

5. Bail Funds Make a Difference

While not a long-term solution, bail funds provide a short-term are helping to alleviate the burden of excessive bail on the poor. They are nonprofit organizations that front bond payments for those who cannot afford them. [Alysia Santo / The Marshall Project]

On Mother’s Day 2017 and 2018, several organizations partnered to create a Mama’s Bail Out Day campaign to pay bail for women to see their children. [Human Rights Watch] [No More Money Bail] Similar bailouts are happening around the country. [Bryce Covert/The Appeal]

The Bronx Freedom Fund grew out of the local public defender’s office and has bailed out more than 600 people charged with misdemeanors since 2007. Other similar funds have been established in major cities around the country. [Bronx Freedom Fund] [Chicago Community Bond Fund]

Some places, like Memphis, Tennessee, automatically charge bail funds fines and fees, making bail fund efforts difficult to sustain. [Alysia Santo / The Marshall Project] The Massachusetts bail fund was struggling financially until activists recently pitched in to help revive it. [Sept. 20, 2017 Edition / The Appeal Newsletter]

6. Courts are Taking Action

Courts are striking down existing bail systems as unconstitutional. Challenges to existing systems are pending in local courts around the country, in both red and blue states. State attorneys general and other members of law enforcement are also recognizing that cash bail hurts the poor.

On Jan. 21, 2018, civil rights groups sued Dallas County, alleging state and U.S. constitutional violations in its cash bail system. According to the complaint, Dallas County operates a two-tiered system in which poor defendants are detained indefinitely while wealthy defendants purchase their freedom pretrial. [Jolie McCullough / Texas Tribune] One of the plaintiffs is Shannon Daves, a 47-year-old homeless woman who the county held in solitary confinement because she could not afford the $500 bail set on her misdemeanor case. [C.J. Ciaramella / Reason]

In Dutchess County, New York, one judge became impatient with the protracted bail reform process and issued a scathing opinion attacking the money bail system. Police had arrested Christopher Kunkeli for shoplifting a vacuum cleaner from Target, a misdemeanor. A lower court judge ordered his bail set at $5,000, nearly half his annual income. Kunkeli remained in jail for nearly five months until he agreed to a plea deal. After Kunkeli’s release, the New York Civil Liberties Union filed a lawsuit on his behalf, contesting the court’s practice of setting bail without considering a defendant’s ability to pay. On Jan. 31, 2018, Justice Maria Rosa ruled that this system violates the Constitution’s due process and equal protection clauses. In her ruling, she noted that in New York, 60 percent of individuals are held in jail without a conviction, before their cases go trial; in New York City, that number is as high as 75 percent. [Alan Feuer / New York Times]

In April 2017, a federal judge put a pause on Houston’s use of its bail system, which it considered probably unconstitutional. [ODonnell v. Harris County] Prior to the 2016 filing, Harris County routinely jailed people for failure to pay bail on misdemeanors like driving without a license. [Federal Judge Strikes Down Houston-Area Bail System / Courthouse News Service] [New York Times / Michael Hardy] The Fifth Circuit largely upheld this decision, recognizing the two-tiered system of justice in Houston, although it allowed the county to take up to 48 hours after the arrest to provide the defendants with a hearing. [Jollie McCullough / Texas Tribune]

In June 2017, a Cook County judge issued an order requiring Chicago judges to consider a defendant’s ability to pay before setting bail. [Richard Oppel / New York Times] [Circuit Court of Cook County]

Last fall, a federal judge struck down the monetary bail system used against misdemeanor defendants in Calhoun, Georgia, as unconstitutional. [Jon Schuppe / NBC] The Department of Justice under President Barack Obama filed a brief in the case supporting the elimination of money bail. [Pete Williams / NBC] A similar lawsuit is pending in Alabama. [Amy Yurkanin / AL.com] And lawsuits have also been filed in Tennessee, Florida, and New York.

Officials in Nashville are contemplating significant changes after the nonprofit law firm Civil Rights Corps threatened to sue over its bail system. A group of judges, public defenders, and district attorneys is putting together a proposed plan to minimize cash bail, with the aim of starting reforms in March. [Adam Tamburin / The Tennessean]

In Massachusetts last August, the Supreme Judicial Court ruled that judges must consider a defendant’s inability to pay when setting bail. And when the judge sets an unaffordable cash bail that will result in extended pretrial detention, he must issue written or orally recorded findings of fact. [Bob Oaks / WBUR]

7. The Future of Bail Reform

State and federal lawmakers are debating legislation to eliminate or reduce the use of cash bail.

Alaska, a largely Republican “tough on crime” state, drastically curtailed cash bail. The new law, which took effect on Jan. 1, 2018, sought to stave off the rapid increase in the state’s incarcerated population, which grew by 27 percent between 2005 and 2014. The law created a pretrial enforcement division to determine, on a case-by-case basis, the likelihood that a defendant will show up in court or commit crimes if released. The judge reviews the risk assessment score, but prosecutors and defense attorneys can argue for harsher or lighter restrictions before the judge makes a decision. The judge can impose secured bail bonds only for individuals charged with violent offenses and with high risk scores, while those charged with nonviolent misdemeanors must be released. For all others, there is a presumption of release. [Bryce Covert / The Appeal]

With the backing of Atlanta Mayor Keisha Bottoms (who was pushed by civil rights groups and grassroots advocates), the City Council approved an ordinance in February 2018 to eliminate the cash bail requirement in municipal court for nonviolent misdemeanor charges or city ordinance violations. [Rhonda Cook / Atlanta Journal-Constitution]

On Feb. 1, 2018, the Philadelphia City Council unanimously passed a nonbinding resolution urging the DA, the state legislature, and state Supreme Court to reduce their reliance on cash bail. In a city where one-third of all defendants are incarcerated because they cannot afford bail,  these reforms could have far-reaching implications for Philadelphia’s criminal justice system. The city’s DA, Larry Krasner, has already articulated plans to cease requesting cash bail for certain offenses. [Teresa Mathew / CityLab]

In 2017, bail reform legislation also passed in Connecticut [Huffington Post / Nick Wing] and New Orleans. [The New Orleans Advocate / Jessica Williams] New Jersey ended its cash bail system in 2014. [Reason / Scott Shackford]

Washington, D.C. largely eliminated cash bail in 1992, and now holds only those defendants deemed too dangerous to release. About 90 percent appear for their court dates. The Washington Post’s editorial board explained that although revamping pretrial release systems that rely on cash bail may involve upfront costs, it is a worthwhile and necessary investment. “In the longer term,” the editorial stated, “bail reform will produce substantial savings by reducing incarcerated populations, cutting corrections staffing and eliminating the need to build more jails to house pretrial detainees. Even if the balance sheet tilts toward an additional burden for states and localities, bail reform needs to happen because it’s the right thing to do. It is a disgrace for a civilized society to lock people up for no reason other than they lack the means to go free.” [Editorial Board / Washington Post]

In Ohio, two Republican state legislators introduced a bail reform bill in December of 2017. The bill would require judges to use validated risk-assessment tools when setting bail — a practice that occurs already in some but not all parts of the state. The bill is supported by the conservative Buckeye Institute’s Legal Center. [Peter Krouse / Cleveland.com] The ACLU has described the bill as an important first step, but has warned that more robust change is necessary to deprioritize cash bail and ensure that defendants have due process protections and the assistance of counsel at bail hearings. [Caitlin Hill / Cleveland.com]

Also in 2017, New Mexico voters approved a constitutional amendment that limited the use of cash bail. While the language is limited, advocates are hopeful that it will provide guidance for judges making determinations on pretrial detention. [Nick Wing / Huffington Post]

In July 2017, Senators Kamala Harris and Rand Paul introduced legislation to encourage states to reform cash bail systems. [Kamala Harris & Rand Paul / New York Times] [Text of Proposed Bill] [Larry Hannan / The Appeal]

In August 2017, the policy-making body of the American Bar Association approved a resolution that “urges governments to adopt policies and procedures that favor release on personal recognizance bonds or unsecured bonds, that permit cash bonds or secured bonds only upon a determination by the court that such financial conditions and no other conditions will assure appearance, and that pretrial detention should never occur due solely to an inability to pay.” [American Bar Association]

Wolves in Progressive Clothing

Many Democratic big city mayors claim to be anti-Trump, but their policies mirror the racism and violence of the president.

Chicago Mayor Rahm Emanuel
Scott Olson / Getty

Wolves in Progressive Clothing

Many Democratic big city mayors claim to be anti-Trump, but their policies mirror the racism and violence of the president.


Most of us are all too aware that we live in dangerous times. With new political crises emerging daily, many find it hard to keep up with the onslaught of President Trump’s attacks on civil liberties, the social safety net and the rights of marginalized people. As we struggle to address these ever-emerging threats, it’s easy to feel off balance, as though we’re always missing something, or potentially focused on the wrong thing.

But as we pivot between nightmarish Trump stories, there’s a phenomenon that has escaped the attention of many progressives: the neoliberal machinations of Democratic mayors. While Trump plays the villain on a national stage, Democratic mayors in cities like Chicago and Baltimore push dystopian, carceral agendas and allow police to harass, kill, and maim marginalized people with near-impunity.

Mayors control enormous swaths of the criminal injustice system—a system that is largely defined by state and local law, rather than any federal apparatus. Police departments work for mayors, so when we talk about policing in the era of Trump, we must understand that the decisions of big city mayors have a larger, immediate impact on the policed than either Trump or Attorney General Jeff Sessions.

In truth, the pro-privatization, pro-police dictates of neoliberalism may be packaged differently than the populist conservatism we associate with Trumpism, but an examination of policy and outcomes, rather than rhetoric, reveals striking overlaps in the goals and priorities of some Democratic mayors and our current president.

In Illinois, Chicago Mayor Rahm Emanuel provides one of the most profound and troubling examples of a Trumpian Democratic mayor at work. Emanuel, who famously shuttered 50 public schools in Chicago and plans for even more closures, has recently been criticized for his efforts to invest $95 million in a new police academy, rather than investing those funds in much-needed community resources. Emanuel has received less heat, however, for his efforts to ramp up youth incarceration and in high-tech surveillance of protesters. With a recent “carjacking bill,” Emanuel played on the public’s racialized fears of carjacking, but the legislation had little to do with armed vehicular theft. It originally called for the default detention of any youth found in a stolen car, or a car that included a stolen part, regardless of whether the youth was aware the car was stolen. In its original form, the bill would have allowed the Chicago Police Department to detain minors for up to 40 hours before being brought before a judge. While opponents of the “carjacking” bill managed to soften up the de facto youth detention clause, the bill did pass, as did a recent surveillance bill that will allow police to fly drones over crowds of protesters.

As originally written, the drone surveillance bill would have allowed Chicago police to deploy drones, which could be equipped with facial recognition software, over crowds of 100 or more protesters. After significant outcry and counter-organizing by groups like the National Lawyers Guild, the bill was altered so police may only use drones when 1,500 or more people have assembled, and cannot deploy drones equipped with facial recognition software. In a different political moment, both bills might have been completely derailed, in spite of Emanuel’s efforts, but we are living in a time of political chaos, and as Rahm Emanuel has noted in the past, he never lets a crisis go to waste.

Playing on the public’s racialized fears about Chicago’s street violence is a trademark Trumpian maneuver, but such tactics are also freely deployed by Democratic mayors like Emanuel. In practice, Emanuel is likewise in lockstep with Trump’s insistence that police should not be punished for excessive violence against community members, with little in the way of consequences for police violence for racially motivated police violence and harassment. In fact, a recent report from Chicago’s Lucy Parsons Lab has revealed that from 2011-2015, Chicago had the most intense stop-and-frisk program in the nation, performing stops at a rate four times greater than New York’s at the height of its infamous program. In addition to daily abuses, Chicago police have both a local and national reputation for killing and brutalizing unarmed Black people, with some high-profile cases, such as the shooting of Laquan McDonald, garnering national attention and launching countless protests.

While Emanuel claims to be enacting police reforms as dictated by a 2017 Department of Justice (DOJ) report on policing in Chicago, his administration seems to be laser-focused on aspects of the report that involve allocating more money to the city’s already over-funded police department. With a department that already devours $4 million per day, Chicago spends more on policing than its public health services, family services, transportation, and affordable housing services combined. In a city that has lost 50 schools and half of its publicly funded mental health clinics to Emanuel’s austerity measures, residents are now being told that the city can suddenly afford to spend $95 million on a new police academy with a swimming pool and shooting range.

While Trump has garnered significant attention for his total aversion to the truth and disregard for the effectiveness of his policies, Emanuel has continued his overinvestment in a police force that has become less effective under his leadership. Trumpism has also become a source of terror in immigrant communities, where his cruel policies and large-scale deportation efforts have created a climate of constant fear and trepidation. Democrats like Emanuel present their “sanctuary city” policies as the antithesis of such measures, but local activists have pointed out that such policies often provide little in the way of protection for undocumented people.

Eliminating schools and clinics while further entrenching mechanisms of state violence is the kind of policy maneuver that many would expect from Trumpian politicians. But Democratic mayors like Emanuel are similarly slashing community resources while empowering police departments that are plagued by allegations of excessive violence, murder and police cover-ups. Such moves are clearly motivated by neoliberal ideologies that call for mass privatization, even as neoliberal initiatives, such as the mass Chicago school closings, cause significant harm in local communities.

In Emanuel’s Chicago, the Fraternal Order of Police recently organized a march for impunity, that protested any disciplinary measure—including any loss of income—for officers who officials have deemed responsible for deaths and guilty of perjury. While the police who marched on May 23 claim that Emanuel has failed them, their brazenness in marching against any accountability is an accurate social snapshot of the city’s police force, and their attitude toward many of the people they are sworn to protect. In an inarguable display of Trumpian values, Emanuel has consistently rewarded the brutal practices of the police with continued overinvestment and a very low rate of discipline—even as police brutality costs the city millions.

In 2016, for example, the city of Chicago paid $32 million in damages for 187 complaints against its police. Those cases also cost the city an additional $20 million in legal fees.

Sadly, Chicago is not the only city where Democratic mayors have been granted the kind of impunity that they have long afforded their police. Mayors in cities like Baltimore, Los Angeles, and New Orleans have continued to employ Trump-like policies in matters of policing, incarceration, surveillance, and immigration. In Baltimore, Mayor Catherine Pugh recently appointed Gary Tuggle, a former Drug Enforcement Administration agent as interim police chief. On his first day as acting police commissioner, Tuggle was found to have provided false information about his place of residence on a city ethics statement—twice. Tuggle also failed to submit six schedules (financial disclosures documents), that were part of the mandatory ethics report. Tuggle’s predecessor, Darryl De Sousa, recently stepped down amid federal charges of tax evasion. De Sousa was Baltimore’s sixth police chief since 1994. He was appointed to the position even after it was revealed that he was involved in the killing of two men as well as a bystander (He was cleared of any wrongdoing in the shootings)

Like Chicago, the Baltimore Police Department was investigated by the DOJ after numerous scandals and community complaints about excessive force. The investigation led to a 2016 report in which the DOJ stated that the department  “engaged in a pattern or practice of serious violations of the U.S. Constitution and federal law that has disproportionately harmed Baltimore’s African-American community and eroded the public’s trust in the police.” Despite the DOJ’s report, and a resulting consent decree, police scandals have continued, with footage of officers planting evidence bringing hundreds of cases into question in 2017. This year, two officers from the department’s Gun Trace Task Force were convicted in federal court on racketeering and robbery charges for robbing residents of money and drugs. Twelve officers from the task force either pleaded out or were convicted of similar charges.

Rather than addressing the culture of corruption within the department, Pugh has opted to continue a cycle of changing leadership—a tactic that has consistently failed to address Baltimore’s policing issues. Following Emanuel’s script, Pugh has called for increased incarceration, blaming the early release of prisoners for the city’s high crime rate instead of addressing her racist, corrupt, and incompetent police. Like Emanuel, she sees no problem in starving social services while feeding the big budgets of police; on June 6, she approved $20 million in overtime. As one Baltimorean noted on Twitter, “We have to fight for years to get close to getting $20mil for affordable housing but the police get it in 6 minutes.” On June 7, Pugh’s budget was approved by the city council; it included a staggering $510 million for the police which one councilman sharply criticized as “reckless”; another councilman said that the budget’s funding for 100 new police officers could have been used instead on “increasing recreation programming, health programming, and increasing staff levels of 911 call takers.”

Baltimore is governed by a mayor who refuses to acknowledge the relationship between poverty, austerity, and crimes of despair and desperation, as she escalates investment in failed mechanisms of violence.

Trump received a great deal of criticism for saying police should freely “rough up” suspects. Although mayors like Rahm Emanuel have made no such proclamations, they embody values that mirror Trump’s positions. And while Trump recently tweeted his support for the May 23 police-led protest march in Chicago for impunity, it should be noted that Emanuel was, in the same political moment, playing hardball to win a near-billion dollar investment in the very police force Trump sought to defend. In light of these political overlaps between Trumpism and Democratic leadership, it is incumbent upon all of us to pay close attention to local legislation and the maneuvers of Democratic mayors who are taking full advantage of the national crisis of Trumpism.

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Louisiana's Love Affair With Locking Up Kids For Life

Years after two landmark Supreme Court rulings, prosecutors in Louisiana are still overwhelmingly seeking life sentences for children.

Louisiana's Love Affair With Locking Up Kids For Life

Years after two landmark Supreme Court rulings, prosecutors in Louisiana are still overwhelmingly seeking life sentences for children.


The Supreme Court may have declared life without parole, or LWOP, unconstitutional for juveniles, but Louisiana continues the practice of sentencing children to die in prison.

In its 2012 Miller v. Alabama decision, the Supreme Court ruled that mandatory life without parole sentences for juveniles (or teenagers who were younger than 18) constituted cruel and unusual punishment. Its decision did not specify whether states should retroactively apply the ruling, leaving each state to decide on its own. In four states, courts ruled that the decision only applied to present and future cases. Louisiana was one of those states.

This meant that Henry Montgomery, who had been sentenced to LWOP for the 1963 shooting of a sheriff’s deputy when he was 17, would spend the rest of his life in prison. After his first trial, he was sentenced to death, which was overturned by the state Supreme Court. At his retrial, he was convicted of first-degree murder, which in Louisiana carries an automatic sentence of life without parole.   

After the Miller decision, Montgomery challenged the state’s refusal to retroactively resentence juveniles given LWOP. His case made its way to the U.S. Supreme Court which, in January 2016, ruled that Miller was retroactive and that defendants who had automatically been sentenced to LWOP as juveniles must be resentenced or considered for parole. At that time, Montgomery was among 2,585 people nationwide serving life without parole sentences for crimes they committed when they were children. In Louisiana, 282 people were serving juvenile LWOP sentences.

The Louisiana legislature amended its laws to comply with Montgomery. The initial bill would have prohibited LWOP for all juveniles, including those convicted of first-degree murder. But under pressure from the state’s district attorney association, the version that passed prohibits future LWOP sentences for juveniles who are convicted of second-degree murder. It also guarantees a sentencing hearing for youth who have been convicted of first- or second-degree murder. However, the amendment still allows children to be sentenced to LWOP if they were indicted before Aug. 1, 2017, and later convicted of first- or second-degree murder. The amended article gave district attorneys until Oct. 1, 2017, to give notice of their intent to seek LWOP.

“What this shows is the incredible role of prosecutors in shaping the legislation,” John Pfaff, a professor at Fordham Law School and author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, told The Appeal. Under the amended law, he notes, “prosecutors still have tremendous authority.” And they are using it: Prosecutors filed notices about their intentions to seek new LWOP sentences in 92 of the 258 eligible cases (or 32 percent).

If a prosecutor is seeking juvenile LWOP, a separate hearing is required under Miller in which a judge must determine if the person is, in fact, the “worst of the worst” and incapable of rehabilitation. But public defenders have said that they lack the money for resources to mount an adequate defense for Miller hearings, including intensive investigations into the histories of their clients, which includes interviewing family members and former teachers and obtaining education, medical, and incarceration records as well as hiring experts.  Juvenile defendants eligible for re-sentencing under Montgomery, meanwhile, are required to have a similarly resources-intensive hearing. Montgomery hearings are also very expensive—New Orleans’s chief public defender estimates that they cost $56,000 per case—so defendants often receive subpar representation for them or even no hearing at all, especially in states in poor fiscal health like Louisiana.

Louisiana’s amended law did not include a reporting requirement, but the New Orleans-based Louisiana Center for Children’s Rights has been tracking outcomes by checking court dockets and calling the offices of judicial district clerks. The center found that at least 85 defendants still have open resentencing cases under Montgomery. In Orleans Parish, which includes New Orleans, the prosecutor has filed notices intending to seek LWOP in at least 26 of his Montgomery 67 cases (or 39 percent). The prosecutor in neighboring Jefferson Parish has filed notices in 10 of his such 23 cases (or 43 percent). A Louisiana defense attorney recently told The Appeal that the district attorney in Calcasieu Parish files a notice of intent to seek LWOP for all of the juvenile offenders in his parish who are eligible for resentencing under Montgomery.

“It seems like we’re on a carousel repeating the mistakes of the past,”  Jill Pasquarella, supervising attorney of the Louisiana Center for Children’s Rights Campaign to End Extreme Sentencing for Youth, told The Appeal. “The post-Miller data tells us this pattern is likely to persist. Even with instructions from the Supreme Court, kids [convicted of murder] were still sentenced to LWOP at a rate of 62 percent. That’s a far cry from ‘rare’ and ‘uncommon.’”

As with everything related to prosecution and prisons, race remains a key factor in prosecutorial decisions. “This is, without question, disproportionately punishing African-American kids,” Pasquarella noted. In the 23rd Judicial District which encompasses Ascension (22 percent Black), Assumption (30 percent Black) and St. James (50 percent Black), there are five people who are eligible for  Montgomery resentencings. Four of these five people are African-American. The district attorney is seeking LWOP against all four African-American defendants, but not the single white defendant in the jurisdiction.

The 23rd Judicial District is not an anomaly. “Race plays a role in the same way that it plays out throughout the criminal justice system,” reflected Pasquarella. African-Americans comprise slightly less than one-third (or 32 percent) of Louisiana’s overall population but they comprise 74 percent of the people sentenced to life without parole. The children’s rights center found that African-Americans comprise 75 percent of Montgomery-eligible cases in which the state is seeking a new life without parole sentence. In addition, only two of the 39 Miller defendants are white.

These numbers are a far cry from “rare and uncommon,” noted Pasquarella, referencing “the rare juvenile offender whose crime reflects irreparable corruption” that the Supreme Court acknowledged might still be sentenced to life without parole. At the same time, prosecutors retain the discretion to seek sentences long enough to guarantee that a person will die in prison.

But even those who do become eligible for parole may not necessarily walk out the prison gates. Though he was responsible for the change in law, 71-year-old Henry Montgomery remains in prison. Following the Supreme Court decision, Montgomery was resentenced and became eligible for parole. In February 2018, Montgomery appeared before the Louisiana parole board. In a 2-to-1 decision, the board denied him parole, in part because he had not been able to participate in prison programs that are off limits to people serving life sentences. Montgomery is in the Louisiana State Penitentiary, also known as Angola.   

“Even with the Miller and Montgomery opinions, we put very few restrictions on what district attorneys can do,” said Pfaff, the Fordham law professor. “They retain tremendous discretion to be punitive and we see that in their embrace of juvenile life without parole.”

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