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Top Five Articles on Bail Reform Last Week

Top Five Articles on Bail Reform Last Week


There is widespread agreement that the bail system is broken. Millions of people annually sit in local jails without conviction because they cannot afford bail, and 75% of pretrial detainees have been charged only with drug or property crimes. The effect is that bail needlessly causes people to lose their jobs, not be able to care for their children, and to lose contact with their loved ones. States like New Jersey and Connecticut have already transformed their systems, with the former eschewing cash bail altogether and the latter creating a presumption against bail for misdemeanors. Even elected head prosecutors, like Kim Foxx in Chicago and Kim Ogg in Houston, are coming out against the current bail system. Also in Houston, a federal judge ruled that Houston’s bail system is unconstitutional because it keeps people in jail only because they cannot pay. Oftentimes, the only group fighting to keep the system the same is the bail industry itself.

Here are the best five articles on the national move toward bail reform last week.

1. Taryn Finley, Kamala Harris Is Dedicating Her First Major Legislative Effort To Bail ReformHuffPost

  • Sen. Kamala Harris (D-CA) has prioritized criminal justice reform, introducing a bipartisan bail reform bill with Sen. Rand Paul (R-KY). The Pretrial Integrity and Safety Act would grant $10 million over 3 years to incentivize states to replace or reform their money bail systems and asks states to make individualized risk assessments. Harris has also recently spoken publicly about the rapid rise in the number of women in prison and the need for criminal justice reform.

See also: Kamala Harris and Rand Paul editorial in New York Times.

2. Nick Malinowski, Why is the Bronx District Attorney holding Pedro Hernandez at Rikers Island?In Justice Today

  • Eighteen-year-old Pedro Hernandez has been held at Rikers Island for nearly two years for a crime he most likely did not commit. Despite ample evidence of Hernandez’s innocence — including video indicating that he was at his mother’s house at the time of the crime, as well as several witness’ statements, including the victim’s, saying he wasn’t involved— Hernandez is being held on $250,000 bail. The Bronx DA apparently sees the weaknesses in the case by offering Hernandez a non-jail plea deal, which he has rejected — yet the DA won’t reduce his bail.

See also: Shaun King calling Hernandez “Rikers Island’s new Kalief Browder” at NY Daily News; Willie Burnley, Jr. discussing how “Hernandez’s case highlights the ways that the money bail system has a disproportionate impact on low- and even middle-class families” at ATTN.

3. Anita Chabria, Rapper Common plans free Sacramento concert to promote criminal justice reformSacramento Bee

  • Common is planning to perform a free concert on Capitol Mall in Sacramento to raise awareness for bail reform and juvenile justice. The concert is a collaboration between Common and former Hollywood producer Scott Budnick as part of a three-day campaign that involves lobbying efforts and an additional concert for individuals incarcerated in state prison. After the Sacramento concert, Common and Budnick will meet with legislators to discuss SB 10, a bill to end California’s money bail system, as well as SB 394, a bill to allow early release for individuals sentenced to life without parole as juveniles.

See also: Fair Punishment Project alumnus Casey Tolan discussing how the bail bond industry thwarted efforts in the California state assembly to change money bail policies in The Mercury News.

4. Megan Crepeau, Judges ordered to set affordable bonds for defendants who pose no dangerChicago Tribune

  • In response to a class-action lawsuit filed last year over the setting of excessive bail, Cook County Chief Judge Timothy Evans has signed an order detailing a new policy whereby judges must take into account a defendant’s ability to pay in making a bond determination. The policy also provides that there will be an interview in advance of the bond hearing to determine a defendant’s financial resource. Cook County State’s Attorney Kim Foxx supports this change.

See also: Richard Oppel, Jr. writing about the decision for the New York Times; Larry Hannan detailing Chicago State’s Attorney Kim Foxx’s support for bail reform in In Justice Today

5. Albert B. Kelly, 6 Months In, N.J. Bail Reform Is Working, NJ.com

  • Prior to New Jersey’s 2017 bail reform initiatives, a defendant’s likelihood for pretrial release hinged almost entirely on his or her ability to pay bail — without regard for ensuring that the bail was set in proportion to the severity of the crime or the risk level of the defendant. Six months after the state enacted ground-breaking reform, New Jersey jail populations have declined by almost 20 percent. Approximately 87 percent of arrestees are now being “released under some level of monitoring” and only 13 percent detained for public safety reasons.

See also: PBS NewsHour interviews stakeholders in New Jersey and discusses how the state is leading the country in bail reform.

To fix the justice system, shrink and reform community supervision

To fix the justice system, shrink and reform community supervision


Over the past decade, the U.S. embarked on an unprecedented jail and prison building campaign, reaching a peak of 2.3 million people incarcerated in adult facilities in 2008. While this meteoric rise of mass imprisonment has been increasingly scrutinized, it is less well known that the number of individuals under supervision on community supervision rose even more dramatically. While community supervision (especially probation) was initially intended as an “alternative” sanction, in recent decades it ballooned alongside imprisonment.

Between 1980 and its peak in 2007, the number of adults under probation supervision in the United States grew from 1.1 to 4.3 million. Adding parole populations brings the total to 5.1 million under supervision. While these numbers have declined since their peak, there are still more than 4.6 million adults under community supervision in 2015, compared to the 2.2 million behind bars. Rather than choosing probation or prison, we have increasingly chosen all of the above, despite sustained declines in crime rates since the 1990s.

Not only are probation and parole additional forms of state control with onerous restrictions and obligations, but they also contribute to prison expansion. When probationers and parolees fail at the overwhelming list of limitations and demands placed on their behavior, they can be revoked to jail or prison — in the most extreme cases, for the entire original sentence. In forthcoming research, I show that 33% of jail inmates and 23% of prison inmates in the mid-2000s were on probation at the time of arrest. Roughly a quarter of these men and women were incarcerated for nothing more serious that violating supervision conditions (for things like failure to report, dirty drug tests, and nonpayment of fines and fees). Compared to probationers in the community, those revoked to jail or prison were disproportionately young men of color. The statistics are just as dire for failed parolees, who made up 12% of the jail population and 18% of prisoners, and for whom roughly one fifth were incarcerated for technical violations (excluding new arrests).

As some states start to scale back their prison populations, reformers increasingly are turning their attention to this hidden form of criminal justice control. From 2013 to 2016, a group of probation officers, sheriffs, corrections executives, prosecutors, judges, policy-makers, reformers, and academics convened through the Harvard Kennedy School’s Executive Session on Community Corrections.

In an unusual development, the group was in such clear agreement about the direction needed for community corrections, they published a consensus document signed by the entire team. Drawing from the U.S.’s foundation principles and values — including life, liberty, and equality before the law — they call for a vision of community corrections that departs significantly from today’s practices. The paper lays out four bold principles to guide the future of community supervision, including:

1. To promote the well-being and safety of communities;

2. To use the capacity to arrest, discipline, and incarcerate parsimoniously;

3. To recognize the worth of justice-involved individuals; and

4. To promote the rule of law, respecting the human dignity of people under supervision and treating them as citizens in a democratic society.

To implement this new vision, the Executive Session members call for a number of paradigm shifts. Perhaps most importantly, the paper advocates moving from “mass supervision to focused supervision” — making probation and parole a targeted and strategic use of resources rather than default supervision status for a massive number of adults. The authors call for the end of probation for low-level offenses that never would have been punished 40 years ago with formal supervision. In addition, they propose a radical rethinking of how individuals are treated on community supervision, with a new emphasis on promoting success, providing meaningful assistance, and emphasizing dignity and respect.

While the brief consensus document leaves much to be worked out in terms of implementation — both at the level of legal changes necessary and the tougher work of changing the daily operations of prosecutors, judges, and probation and parole officers throughout the country — it is a notable accomplishment. Bringing community supervision out of the shadows and centered in criminal justice reform is critical if we are to dramatically reduce the scale of imprisonment without transferring those populations onto community supervision. In addition, such an upheaval of the justice system has the potential to bring real improvements to the lives of families in distressed communities, where criminal justice control has been far too extensive and repressive.

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Court holds that retroactive extension of sex offender registration is punitive

Court holds that retroactive extension of sex offender registration is punitive


Last week, the Pennsylvania Supreme Court held that some applications of the state’s sex offender registration law violate the state constitution. The decision represents an important step toward increasing constitutional scrutiny of sweeping laws that make it nearly impossible for convicted sex offenders to reintegrate into society after serving time in prison.

Jose Muniz was convicted in 2007 of indecent assault. At the time, the law required him to register as a sex offender for a 10-year period. Mr. Muniz fled before his sentencing; he was apprehended in 2014 and brought before the court for sentencing. While Mr. Muniz was on the run, the Pennsylvania legislature passed a new Sex Offender Registration and Notification Act (“SORNA”), which added even more onerous registration requirements. At Mr. Muniz’s sentencing, one of these new requirements was applied: he was ordered to comply with the new lifetime registration requirement instead of the 10-year requirement that had been in effect at the time of his conviction. Mr. Muniz appealed the application of the new lifetime registration requirement, asserting that the retroactive application of SORNA violates the ex post facto clause of the U.S. Constitution and the Pennsylvania Constitution.

The courts below had rejected Mr. Muniz’s argument by determining that SORNA’s registration provisions were not punishment at all; they were, instead, civil and nonpunitive. Accordingly, the ex post facto clause did not apply.

The Pennsylvania Supreme Court disagreed and struck down Mr. Muniz’s registration requirement as unconstitutional. Three of the five justices in the majority wrote an opinion stating that the retroactive application of SORNA violated both the U.S Constitution and the state constitution; two concurringjustices joined in finding a violation of the state constitution. One justice dissented. (Only six justices took part in the decision.)

The key finding in the majority’s opinion in Commonwealth of Pennsylvania v. Muniz is that SORNA is punitive in nature. Although sex offender registration might otherwise appear to be clearly punitive in both operation and intent, courts have historically deferred to state legislatures who claim that the primary purpose of such laws is regulatory in nature, and not to punish sex offenders. Indeed, the Pennsylvania General Assembly explicitly wrote that SORNA “provides a mechanism for the Commonwealth to increase its regulation of sexual offenders in a manner which is nonpunitive but offers an increased measure of protection to the citizens of this Commonwealth.”

Because Pennsylvania claimed that SORNA was not punitive, the court then undertook a review of a variety of factors to see whether implementation of the statutory scheme had punitive effects. After a lengthy discussion of the factors that help courts determine whether a civil scheme is punitive (set out by the U.S. Supreme Court in the case Kennedy v. Mendoza-Martinez), the three-justice lead opinion concluded that “SORNA involves affirmative disabilities or restraints, its sanctions have been historically regarded as punishment, its operation promotes the traditional aims of punishment, including deterrence and retribution, and its registration requirements are excessive in relation to its stated nonpunitive purpose.” The two-justice concurrence agreed with the Mendoza-Martinez findings, and agreed that SORNA’s retroactive application violates the Pennsylvania constitutional protection against ex post facto laws under Article 1, Section 17. (The two opinions disagreed about whether the Pennsylvania Constitution offered more robust ex post facto protections than the U.S. Constitution, which is why no single majority opinion came through.)

Several other courts around the country have found that sex offender laws have punitive effects, including those in MarylandIndiana, and Alaska. And, in a high profile case that is currently pending consideration before the U.S. Supreme Court, the U.S. Court of Appeals for the Sixth Circuit determinedthat Michigan’s retroactive application of its registration requirements was punitive. While the State of Michigan has asked the Supreme Court to reverse that finding, the U.S. Solicitor General somewhat surprisingly urged the Courtto deny the State’s request and leave the Sixth Circuit opinion undisturbed.

The Pennsylvania decision may be an additional signal that the tide is slowly turning against a widespread hyper-punitive approach to managing sex offenders. In an important First Amendment decision issued near the end of its most recent term, the U.S. Supreme Court also hinted that some justices are concerned that these laws have gone too far. As I wrote in a post for the ACSblog:

“Even setting aside this serious problem of the legal conflation of child molesters with teenage pranksters — a problem that poses a real public safety concern by undermining the utility of registries — state laws dealing with sex offenders who have already served time curtail liberty to an extreme degree. A subset of these offenders are subjected to civil commitment, meaning the state detains them in prison-like conditions (where they are theoretically treated for mental health problems that make them dangerous). In several states, this involuntary detention is indefinite. These people will die in state custody. Many states and localities also impose severe residency and travel restrictions on released sex offenders, making it so difficult to find living arrangements in some places that affected citizens are forced to live on the streets and under bridges. Research suggests that such laws may actually increase the odds that these individuals will commit crimes again.”

While challenges to such laws will continue to percolate across the country, the Muniz decision raises a number of pressing questions in Pennsylvania. The Cumberland County District Attorney, on the losing side of Muniz, got it right when he told the Post-Gazette that: “The finding by the court, that essentially the whole scheme is punitive, calls the entire statute into question.”

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