The Effects of Bad Bail Reform On Connecticut Public Safety

Connecticut residents and lawmakers are watching New York closely, as the city has recently implemented a series of proposals to reform the bail bonds practice. Not only has New York been one of the hotspots for the Covid-19 outbreak, but it’s also been the epicenter of a hotly debated series of reforms aimed at reducing the populations in state and local jails, through changes in the cash bonds system.

While many governments wish to mitigate the spread of communicable illnesses, enacting laws regarding the bail bonds practice can have an impact on public safety that may have results that last longer than the current health crisis. Connecticut, being a close state neighbor of New York, and with many residents in the state regular commuters into New York for work or school, may very well have reason to be concerned about watching these New York under debate develop.

We’re looking at the impact and risks of bad bail reform and the risk to public safety in Connecticut, but in order to do so, a deeper understanding of the process going on in New York is necessary. However, New York isn’t the only state that’s considering reforming the cash bail bonds system. At the request of Connecticut Senate President Pro Tem Martin Looney, D-New Haven, reforms to decrease the number of people in jail awaiting a hearing is in front of the Connecticut state senate, too.

New York is a special case with regard to bail bonds reform, however. Unique among other states, including Connecticut, New York cannot consider public safety in any aspect of a release for a charged prisoner trial. So, when New York lawmakers passed legislation that limited the number and scope of criminal charges in which defendants would be either remanded (held in jail pending trial) or required to post bail. Many people watching this process question New York’s prohibition against considering the dangerousness of the accused in question when determining whether or not to release them pending trial. Even certain non-monetary release conditions, such as electronic monitoring, are under consideration.

Luckily for Connecticut residents, the state judges can consider whether the defendant is considered a risk to public safety when determining whether or not they would be eligible for pre-trial release. However, seeing that New York is a close neighbor of Connecticut, many Connecticut residents may have a valid reason to worry about New York’s questionable bail bonds reforms, despite the health concerns about crowded jails.

New York’s reforms resulted in a dramatic increase in the number of defendants who avoided pretrial detention altogether – not even electronic monitoring or any surety that the defendant would return for trial or stay out of mischief in the interim. The results of New York’s reforms were what many who opposed the reforms feared – a corresponding sharp rise in the number of defendants who were rearrested for new offenses while they were awaiting trial for their initial charge – and some of these arrests were for the same offense as the initial one. Not surprisingly, the spike in crime led to New York lawmakers scaling back the initial reforms.

The situation in New York is one that many in Connecticut wish to avoid.

Currently, there are several financial ways that those arrested in Connecticut can be released from jail pending their trial. These are:

• Surety Bond

  in which a bail bondsman accepts a fee (typically 10%, although these fees can vary according to the bondsman and the severity of the crime and amount of the bail bond) and then provides the remainder of the bail bond amount to the court

• Non-Surety Bond

  where the defendant doesn’t have to pay for bail upfront but will be financially penalized if they don’t show up for the trial

• Cash-Only Bond

  where the defendant must pay the entirety of the bond themselves in order to be released from jail

Currently under Connecticut law, if a defendant posts a bond in full, they’ll receive their money back after the case is resolved, assuming that they show up for court through the duration of their trial. However, many people don’t have the wherewithal for a full bond payment, and thus must make arrangements with a bail bondsman if they wish to stay out of jail while they await trial. In these cases, the fee to the bail bondsman is forfeit, but the defendant is able to resume work, seek treatment if necessary, or remain with family in the interim.

Considering the investment that many accused (and whoever may assist them in putting up a cash bond or paying for a bondsman fee) in Connecticut make in remaining out of jail, it’s little wonder that recidivism in CT is lower than New York’s current statistics for defendants awaiting trial. Let’s look at the data from New York after its reforms were enacted.

Within the first two months after the state’s legislature in Albany passed the bail reforms, nearly 500 people arrested for non-bail-eligible felonies were re-arrested in New York City. Some were re-arrested more than once, and the total crimes that these individuals were arrested for number 846. These included murder, robbery, felony assault, and burglary.

Considering this data, its little wonder that Connecticut residents have reason to be wary of bad bail reform and its risk to public safety. New Yorkers shared this opinion, and public opinion about bail reform plummeted.

New York lawmakers attempted to “plug the holes” in the bail reform legislation, adjusting the number of qualifying offenses are bail-eligible. However, state judges in New York are required to choose the least onerous and restrictive means of securing the defendants and ensuring that they show up for trial – and explain their decision on the court of the hearing record.

Fortunately for New York residents, many of the crimes that were designated as “qualifying offenses” were ones in which there was sexual exploitation, violence, and the threat of violence. With these qualifiers, it’s fairly clear that the crimes that were re-qualified are ones in which there is an element of public safety risk. However, for the 846 victims of crime in New York immediately after the bail bonds reform, this adjustment may feel like too little, too late. Plus, the United States Supreme Court has consistently ruled on multiple occasions that the pretrial detention in cases where the defendant poses a threat to public safety is permissible – a ruling that many New York judges may likely cite.

This ruling, and the laws in many other states, including Connecticut, are based on the presumption that the crime with which a defendant is a charge is an indicator of whether or not they’ll re-offend after their initial arrest. However, some studies posit a different theory.

This theory, based on a study by the Center for Court Innovation, revolves around using a validated algorithmic risk assessment tool (RAT). This computerized analytic tool calculates the risk factor of releasing a defendant based on certain factors including criminal history and age. The study demonstrated the accuracy of the tool, and that accuracy was consistent across all racial groups. This result is in direct opposition to those who claim that a racial basis is built into the algorithms. This argument is one that many make when talking about the cash bail bonds system in New York. While New York often relied heavily on cash bonds (as opposed to remand or electronic monitoring), the criticism that the bail bonds system is inequitable was what prompted the reforms – that and the outbreak of Covid-19.

Now that we’ve looked at New York’s recent history with bail bonds reform, what are the implications for Connecticut? For one, the legislature has a responsibility to protect the safety of the public, and this means preventing crimes from being committed. However, there is also the notion that those accused are innocent until proven guilty, and that incarceration prior to enhancing may infringe on that right.

Currently, the bail bonds system in Connecticut is under review, and Alex Tsarkov, the executive director of the Sentencing Commission, says that this evaluation is “vital.” But what will this mean for Connecticut residents?

Judges in Connecticut can’t detain those accused unless they set a very high bail bond. Unlike some states, such as New Mexico, Connecticut prosecutors don’t have any other way of ensuring that a defendant remains in custody prior to trial, no matter what crimes they are charged with. Considering that the only recourse judges have to restrict violent offenders from the general public is a high cash bond, it’s important that Connecticut lawmakers carefully plan alternatives before making possible bad bail reform measures.

Connecticut bail bonds aren’t going anywhere, even though Connecticut bail reform in front of the state’s legislature. Many people in the state consider bail reform and CT public safety to be of primary concern, and there are many people who have a vested interest in ensuring that public safety in CT is maintained.