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Ditching the Bondsman is Only Part of the Battle for Bail Reform

The five states that have done away with commercial bond outlets still struggle with inequity when it comes to cash bail.

Spencer Platt / Getty Images

Ditching the Bondsman is Only Part of the Battle for Bail Reform

The five states that have done away with commercial bond outlets still struggle with inequity when it comes to cash bail.

Of the criminal justice system’s many characters, the bounty hunter is perhaps the most cartoonish. Tasked with chasing down and capturing those who don’t — or can’t — pay back their debt to commercial bail outfits, this Old West relic has spawned multiple popular TV series. It’s easy to see why commercial bail and bounty hunters are emblematic of the ills of the cash bail system, which have increasingly come under fire from those pushing for criminal justice reform.

While financial incentives questionably drive many parts of the criminal justice system, the perversity of profiting from incarceration is laid bare in the bond industry, in which people who haven’t yet been charged with a crime pay a nonrefundable fee for their freedom. Five states in the U.S. have done away with commercial bail bonding, either by statute or by changing the way courts collect cash bail: Illinois, Oregon, Kentucky, Massachusetts, and Wisconsin. Getting rid of for-profit bail shops may be an important step toward amending the many facets of the bail system that work against the low-income people who are most likely to be locked up. But organizers in states without commercial bonds are struggling with many of the same issues as those in states where the practice is still legal.

“What we have is a court system that is itself profiting off of the bail program, which creates a perverse incentive for the government,” says Sharlyn Grace, co-founder of the Chicago Community Bond Fund, which pays bond for those in Cook County jail who are unable to bail themselves out.

While Illinois made bounty hunting illegal in 1963, Grace says “deposit bonds” paid to the court to bail someone out of jail still echo the commercial system. For example, if a judge sets bail at $100,000, a defendant must pay 10 percent to the court to get out of jail. Of that ten percent, the court clerk keeps $1,000 whether or not the person shows up for their court hearing. In states where they are allowed to operate, bail bondsmen do the same thing.

“There’s no large insurance companies in the background making profits, but the fact is that the court is deriving part of its budget from collecting money from people pretrial, and people are forced to pay or sit in jail,” Grace tells In Justice Today.

In February, an Illinois lawmaker introduced legislation that would do away with cash bail for any person charged with a nonviolent offense. The proposal, which ultimately failed, faced significant pushback from county court clerks, according to Grace. They argued that the courts relied on the funds from deposit bonds to function. “[Getting rid of commercial bonds] doesn’t eliminate the fact that someone’s collecting money, and those entities may protect their interests,” says Grace.

In Wisconsin, Nino Rodriguez, an organizer with Free The 350 Bail Fund, struggles with many of the same issues faced by bail fund organizers in states that still have commercial bail. In states that have abolished for-profit bail bonding, Rodriguez says that “bail amounts tend to be lower … but that doesn’t mean they’re affordable.”

Rodriguez and his fellow organizers estimate that 1 out of every 5 people in Dane County Jail are there only because of unpaid money bail. (Nationally, three out of every five people in jail are there because of their inability to pay their way out.) Though the fund has only existed since August 2017 and has bailed out 3 people, Rodriguez has already witnessed firsthand the challenges facing those who are unable to pay their bail. Judges and commissioners who assign bail are mandated by Wisconsin state statute to consider a range of factors, including a defendant’s ability to pay. Rodriguez and his collaborators have recently begun court-watching to see if the process is unfolding as it should during a defendant’s initial appearance in court.

“I don’t recall seeing a serious inquiry [by the court] into ability to pay,” says Rodriguez.

Dane County’s justice system is also a stark example of the racial disparities found in local jails throughout the country — particularly when it comes to who winds up sitting in jail because they are unable to pay their bail. A 2015 study found that black Madison residents were over 10 times more likely to be arrested than their white counterparts, even though they make up just 7 percent of the city’s population.

Amanda Liepold, a member of the Madison, Wisconsin National Lawyers Guild chapter who works with Free The 350 Bail Fund, echoed Rodriguez on this point. “Don’t assume that simply because you’re going to abolish bail bondsmen that your bail programs are now going to be just and free of bias and disparity,” she says as a word of warning to states that might consider following Wisconsin’s path.

Recently, Clatsop County, Oregon District Attorney Josh Marquis boasted on Twitter that his state was the first in the country “to abolish cash bail.” Marquis inaccurately conflated the elimination of commercial bond companies with doing away entirely with the state’s cash bail system — two vastly different reforms. While the bald profiteering of bail outlets makes them an obvious target for the reform movement, what’s happening on the ground in states like Wisconsin and Illinois illustrate that eliminating commercial bond is only a partial fix. (Of the states without commercial bail, Oregon appears to be the only one without a community bail fund movement.)

“There are still definitely injustices in the system even though we don’t have bondsmen [in Wisconsin],” says Liepold. “There are still folks sitting in jail who shouldn’t be.”

Thanks to Burke Butler.

Louisiana Man Ordered Released From Jail After Waiting Almost Eight Years For Trial

Case called an “embarrassment to criminal justice system.”

Orleans Criminal District Court

Louisiana Man Ordered Released From Jail After Waiting Almost Eight Years For Trial

Case called an “embarrassment to criminal justice system.”

Kevin Smith of New Orleans had been locked up for almost eight years on a non-violent drug charge awaiting trial. District Court Judge Tracey Flemings-Davillier finally ordered his release earlier this month after an appellate court ruled in June that his right to a speedy trial had been violated. According to The New Orleans Advocate, Smith spent more time in jail — 2,832 days — for a non-violent offense without being tried than any other individual in New Orleans.

“I think it’s an embarrassment to the criminal justice system,” said Rafael Goyeneche, president of the Metropolitan Crime Commission. MCC has been critical in the past of the length of time it takes for individuals accused of crimes to come to trial.

According to Matt Sledge of The New Orleans Advocate, all involved officials are denying responsibility for the delay. “No one can guarantee it won’t happen again.”

Orleans Parish District Attorney Leon Cannizzaro agreed that Smith shouldn’t have been locked up this long without being tried, but he deflected blame away from his office. Rather, Cannizzaro criticized Smith and his defense lawyers for repeatedly attempting to delay a trial.

“How do I feel about it? Why didn’t the case go to trial? Well, because the defendant did a masterful job of continuing the case over and over again,” Cannizzaro insisted.

But defense attorney Martin Regan rejected Cannizzaro’s argument, countering that the prosecutors were responsible for the delays. “They knew they could not convict him, so the matter drug (sic) on and on and on. Mr. Cannizzaro, do not blame the defense for this.”

Smith was arrested by state police and federal officers in February 2010 after crack cocaine was found in a safe in his home. He was charged with one count of felony possession with intent to distribute. Smith had previously been convicted of drug offenses and was on parole at the time of his arrest. He faced up to 20 years in prison as a habitual offender.

Bail was set at $50,000, more than Smith could afford, so he was confined until trial.

Smith’s trial date was scheduled and postponed numerous times. It was originally set to begin in August 2011. During jury selection prosecutors claimed to discover new evidence. The original charge was then dropped and refiled, giving prosecutors another two years to take Smith to trial.

One year later, in August 2012, the day before Smith’s trial had been rescheduled to start, Hurricane Isaac hit New Orleans. Prosecutors then evoked a law passed after Hurricane Katrina to argue for another two years to bring Smith to trial.

The case was reassigned in November 2012 to a new judge. It seemed to drop away entirely until a judge took the case in May 2013.

Smith’s lawyers raised questions about his mental state in 2014, and requested that he receive a mental competency determination. After Smith was judged to be sane, he filed a motion to proceed to trial, but his own lawyers requested another delay. During this time, prosecutors offered him a 10-year plea deal, which Smith rejected.

Smith filed another motion on his own behalf in December 2016, arguing that his right to a speedy trial had been violated. His lawyers supported his motion. Flemings-Davillier rejected the motion in April 2017, but the 4th Circuit Court of Appeal overruled the district judge in June. The Louisiana Supreme Court declined to consider the case, and Flemings-Davillier finally agreed to order Smith’s release on November 13.

According to a search of the Orleans Parish Sheriff’s Office jail database, Smith was no longer locked up on Thursday, Nov. 16.

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Memphis Police Failed to Properly Investigate “Hundreds” of Rape Cases, Says Former Memphis Police Sex Crimes Detective

Thomas R Machnitzki (CC BY 3.0) via Wikimedia Commons

Memphis Police Failed to Properly Investigate “Hundreds” of Rape Cases, Says Former Memphis Police Sex Crimes Detective

The Memphis Police Department failed to discipline detectives who routinely left rape kits untested, former Memphis Police Lieutenant Cody Wilkerson testified on November 8. Memphis police detectives closed rape cases without testing rape kits, he said, “hundreds, hundreds of them”, and without any consequences to their careers. Detectives also closed other rape cases only after minimal investigation, and when Wilkerson sought departmental charges against one such detective, Wilkerson’s superior refused. “What the detective did was criminal,” said Wilkerson. “We could not even hold him accountable.” (MPD did not respond to a request for comment.)

Wilkerson made these statements in a deposition taken in a Tennessee case filed March 26, 2014 against the city of Memphis and Memphis police. (The suit, first filed in Federal court, has moved to Shelby County circuit court.) The plaintiffs are three women — Meaghan Ybos, Madison Graves, and Rachel Johnson — who were sexually assaulted between 2003 and 2010 and whose rape kits were not tested for years.

In 2012, Ybos saw a news story reporting the arrest of a man she believed raped her in 2003. What she learned once she called the police was that her kit had never been tested. The delay allowed Anthony Alliano, a serial rapist who raped eight separate women in similar cases — including Ybos, Graves, and Johnson — to remain at-large. Alliano, who was convicted in 2013 and is now serving a 178 year sentence, raped two of the plaintiffs, Ybos and Graves, within three days of one another in 2003. As the three plaintiffs’ rape kits containing evidence of Alliano’s DNA sat untested, two kits neglected for as long as nine years, he continued to assault other women.

Memphis police failed to test more than 12,000 rape kits, the city finally acknowledged in 2014, with some dating back to the 1970s.

“It was never contemplated nor imagined that [a] rape kit would be misplaced, discarded or otherwise forgotten about,” the women’s lawsuit against the city and police states. Each woman “consented to the forensic examination of her body. She entrusted the custody of her personal body fluid sample as well as the DNA sample of her assailant to the agents of the City of Memphis and Shelby County. She entrusted that each of these would be used responsibly and in a diligent manner to identify, apprehend and prosecute the rapist.”

One of the women suing the city and Memphis police, Madison Graves, was 12 years old when Alliano raped her. As the suit states, “[h]e spied on her and accosted her as she was entering her parents’ house … subdued her, restrained her and raped her… Alliano’s face was hidden at all times such that DNA evidence was of particular import.” But when Memphis police arrived, the suit continues, the victim, not the perpetrator, fell under investigative scrutiny: “[t]he inquiries focused largely on her and presupposed the falsity of her story rather an on the particular facts relevant to the assault.” Alliano would remain at-large for nine more years.

Fifty more plaintiffs have since joined the three women since they first sued the city of Memphis and Memphis police in 2014, a suit slowly advancing toward trial despite the city’s attempts to dismiss it, and the Memphis mayor’s claims that the suit compromised his fundraising efforts for rape kit testing. In September, the city appealed a judge’s decision to deny the city immunity in the suit.

This suit could uncover more information about the city’s pattern and practice of failing to test rape kits. Former lieutenant Cody Wilkerson’s deposition this month has already exposed that the failure to test the kits was condoned and institutionalized in the police department.

Wilkerson retired in January 2016, after more than 26 years with the Memphis Police Department. During his time as a detective with the sex crimes unit from 2009 to 2012, Wilkerson said, it was “pretty common knowledge” in the unit that kits were untested, he said. Detectives routinely closed cases without sending rape kits to the Tennessee Bureau of Investigations (TBI) for serology or DNA testing. In one case, in which a kit was tested and matched a sample in the FBI database, five years lapsed before police followed up. “The answer to a crime,” he said, “had sat there on somebody’s desk for five years.”

But Wilkerson offered specific details on how some Memphis police prevented him from taking action to address their poor investigations of rape. He testified that Lieutenant Wilton Cleveland told him to stop talking to a victims’ advocate with questions about lapsed investigations, “because it was making the police department look bad.” (Wilkerson said he continued to talk to her.) When Wilkerson later served as a supervisor in the sex crimes unit, he tried to make some changes from within the department. “I wanted some oversight. I wanted more supervision. I wanted detectives to not have the ability on their own to close a case… and I told that to everybody that I could,” Wilkerson said. “But the answer always was, we now know better, we do better… those were mistakes made in the past.” Then he said he discovered an abandoned investigation, and he linked it to a man police had since arrested for a different sex offense. Wilkerson said he then notified Major Don Crowe that he had probable cause to charge that detective with “accessory after the fact to aggravated rape,” and that Crowe would not allow him to discipline the detective.

As the suit has progressed, the city has attempted to spin its belated acknowledgment of the neglected rape kits into a kind of success story. Earlier this year, the city’s Sexual Assault Kit Task Force submitted three cases for the “DNA Database Hit of the Year” award, administered by a forensic DNA policy firm. One was named a finalist.

But seven years ago, when the untested kits were first reported by the local news, the city denied there was any need to test all the kits. Citing a case where a woman who had first reported a rape later told police she didn’t want to pursue it, in February 2010 Director of Police Services Larry Godwin wrote to Memphis television station WREG, “There are many more cases that resemble this one. This submission is made at what cost to the tax payer?” (Federal grants through the Forensic DNA Reduction Program have been available since 2004. As of 2010, Tennessee had received more than $4M through this program; in 2004, 2006, and 2007, the state did not apply for these funds.)

Since then the city’s interest in the rape kits had changed dramatically, especially after Memphis was awarded a $1.07 million grant in 2017 from the Department of Justice, on top of previous grants totaling $3.9 million, which allowed them to test nearly all the remaining backlog. According to the city’s Sexual Assault Kit Task Force, 250 kits remained untested as of September 2017.

Today, Memphis wants to be seen as a “model” of taking rape kit testing seriously. But the kits are just one part of the department’s failures in sexual assault cases. The much more significant, and possibly still unresolved problem — as Wilkerson’s testimony and the plaintiffs’ experiences with Memphis police point to — is law enforcement’s pattern of disregard for survivors of rape.

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