This video with transcription is from the 2018 Florida Bar Criminal Justice Summit with a focus on Pretrial Release.
A transcription from this video has been provided below for a majority of the session. You will notice numerous comments from state law enforcement officials declaring there is no need for a new bail system in most areas within the state.
Panelist / Rachel Logvin from Pretrial Justice Institute, Rockville, MD speaks:
I have a commitment today to provide a context of what’s happening on the national level around pretrial justice. I’m going to spend a few minutes to provide you with some of the research that has informed the movement around the country. And start with the ABA standards for the bail decision. I make no assumptions about who’s in the room and what people know. But as you can see, it’s about the integrity of the process. It’s about due process. And it’s about safety. Safety for the community and for the victims. And it’s important to remember the foundations of our legal framework as we embark on any pretrial justice. Whether it’s at the local, the county, or state level.
A key landmark decision in 1987 (one of the many ones around pretrial improvements) USB Solarno and Chief Justice Ranklis wrote in his majority opinion. “In our society, liberty be the norm, but the detention pretrial be the carefully limited exception.”
So, we’re going to look at what our country looks like as the landscape and whether or not this is in fact the case. A high-performing pretrial justice community, state, locality, we consider has the three M’s: which is maximizing liberty, which most state’s statutes call for a presumption of release. There are 29 states that are ‘right to bail’ states. And with that, maximizing in that bail decision: appearance. And in almost all states (except a few, New York being one): public safety in that decision.
If we take a look at the jail populations, we saw how prison populations just previously in the plenary, rewind to the early eighties, our jails, about 2/3 of them, were people serving convictions in the county jails. With only about 1/3 of those being detained pretrial unconvicted. Fast forward to current day, these stats come…and by the way…anything that I cite today, I do have citations for them. So if you’re interested in them, I can’t point you in that direction.
Fast forward to current day. About 2/3 of the people in our county jails are being detained unconvicted pretrial and a majority of those statistically charged with low-level offenses and misdemeanors. And if we look at the increasing jail populations, since the early 2000s, 95% of the increase of our jail populations are those that are pretrial. These are unconvicted prior to adjudication.
We can also look at many other factors. We can look at crime rates. Ten to twenty-five percent of the crime rate decrease may be because people are being detained either in jails or in prisons. But crime is going down across the country. Violent crime. Property crime is going down. And more people are being booked into jails. So, if we look back in the early 1980’s, about 51% of the people arrested were actually booked into jails. Now, about 95% of people who are arrested are booked into jails. There are some states around the country like New Jersey or places like New Hampshire who are using citations in lieu of arrests. Citing people for low-level offenses as one of the strategies. I think Miami-Dade has employed that strategy.
Now, around 2013, there was a really big shift in the pretrial justice movement that really shook the field. Many of us working in the field at the time – there was a series of research briefs that came out from the Laura and John Arnold Foundation that talked about the impacts of pretrial detention. And those detained pretrial, as you can see from these graphics, compared to those that are released within 24 hours and most of those cases is because they can afford a monetary cash bond, which is the theme of the conversation we are having today are four times greater likelihood a jail sentence, 3 times greater likelihood of a prison sentence and then longer sentences for both jail and prison. So, there’s some dynamic in terms of people being released pretrial verses 24 hours verses those that are being detained. Whether it’s taking the plea, whether it’s…many suggest that it is….there’s more research that needs to be done. But, when you’re detained pretrial, there are impacts on your home, your family, your job. Many people do whatever it takes if they cannot afford the monetary cash bond to get out. And there are implications for taking that on in terms of system reform. And the impact of case processing (should more people be released inside of maximizing pretrial liberty).
Also, in a conversation around the national landscape is the disparate impact around race, bail and economic status. The research also shows that policing practices are an area that can be examined and there are many jurisdictions around the country that are reflecting upon this and the policing practices. From the very front end of the system showing that 2.5 times more likely African Americans verses white individuals are more likely to be arrested. And if you look at the bond amounts among race lines, similar charges, similar backgrounds, similar criminal histories, African American men compared to white men, 35% higher bond amounts. And Hispanic men compared to white men, 19%. So there’s disparate impact in both areas of policing and the use of secured money bond for us to reflect on and identify areas to take on and tackle within Florida.
Chief Justice Drabner in New Jersey did a major overhaul of their pretrial systems. And not that it is at all necessarily comparable to Florida. I mean, Florida is Florida and we are unique in our own way. And we have eccentricities and court systems that are structured very different. However, there are some key components to reform in states like New Jersey, and in Kentucky, and in Washington, and in New Hampshire, and in New Mexico, that all can be identified as areas for us to look at and go to work on and identify as future solutions.
Chief Justice Drabner, he identified that there is a problem at both ends of the system. One, the research from the Laura and John Arnold Foundation shows that half of the time, the highest risk individuals, those that pose a potential unmanageable risk to the community are released pretrial because they can afford the secured money bond. And then, meanwhile, those who remain detained in our jails, the majority are low-risk misdemeanor charges (what we would label as low-risk, low-level charges). And so, if we look at our jail populations (and I’m glad Sheriff Hunter is here to talk about what he’s done in Columbia County) if we look at our jail populations around the country, we are not detaining the people, and the carefully limited exception, with those that we care about the most being detained, those that pose that potential eminent risk to public safety and community safety. Which is what we as Americans care about the most. Whether it is anecdotally or research, that is our top priority.
As I wrap this up, the other research that came out of Laura and John Arnold Foundation in 2013 talked about the length of pretrial detention and the impacts of that. So, this graph basically says that all of the people in this study (it was a pretty vast study) were assessed on a pretrial assessment tool many judicial circuits here in Florida (not many…some) used pretrial assessment tools and then they were categorized as low or medium risk to either appearance, public risk or public safety. And those who were detained two to three days, as compared to someone who was released (in most circumstances) who was able to afford the cash bond within 24 hours. Two to three days, the likelihood of new criminal activity in the short-term, had a merely 40% increase. And that’s for someone who was labeled low-risk (typically low-charges, limited criminal history background). Four to seven days, a 50% increase in new criminal activity in the short term. And eight to fourteen, 56%. You can see the statistics for the moderate risk.
They did this not only for new criminal activity, but also for appearance rate. And they weren’t as drastic, but significant increases in failing to appear in both of these respective columns. They also did this research in aligned with two-year recidivism rates. So, post adjudication, the likelihood of new criminal activity within a two-year period. And the numbers went up. And the field, this really shook the field and said, ‘What we’re doing is actually producing the result that we don’t intend. It’s certainly not maximizing liberty by any means. And we’re detaining people and then basically creating a perpetual impact of future new criminal activity controlling for all other factors. And this really shook the field and led us to major policy decisions to be made at national state holder groups. You name it, they came to the table and said we need to really address pretrial and set up systems and policy statements for systems that actually produce what we care about the most.
Finally, I want to talk about the use of money bonds and as we embark upon this conversations for Floridians. Two studies re-validated the use of the impacts of the use of financial secured money bonds and the likelihood of being convicted, serve longer sentences, thus higher fines and fees and even being arrested again. There’s a perpetuality to the use of a secured money bond. And both of these studies, a new judicinal study was done, that said that there was no difference in the terms of appearance or public safety, whether the use of secured money bond or unsecured money bond. No difference. The same outcomes were produced.
So, as we go to work today and in the future, these are just some of the key research findings for us to consider and hone in on, as we identify solutions for Florida. So, with that said, I’m going to turn it back over to Chelsea and the Panel. And I will be available as we continue the dialogue.
Panelist / Judge Kevin Emas (3rd Distric Court of Appeal) speaks:
I’ve been in the ivory tower for about eight years now on a District Court of Appeal, but I did spend some time in the trial court (about twelve years) and was a practitioner. Though, I’ve largely forgotten what that means. So, I did have some experience and boots on the ground. So, when I was asked to serve on this Panel, I really tried to think about, ‘What is the mission of that we are here for with regard to bail and pretrial base?” And, so I think it’s informed by two principles. That I think we have to accept (or we can’t really have a discussion). And the first one is the presumption of innocence. Which we all give lip service to it and we all think is important. But the truth of the matter is, right? It’s a practical matter when you read the newspaper. And you see someone is accused of a crime. Sometimes it’s hard to give that person the presumption of innocence. But it’s important and plays into the second principle which is the purpose of pretrial release is to ensure the appearance of the defendant at trial or at hearings where the presence of the defendant is required. So, we take those two principles and truly believe we want to breathe life into them and believe the reason why we’re here is, ‘Can we do this better?’
Are we doing it now as well as we can? But can we do it better?
Can we maximize the effective use of pretrial release conditions without adversely impacting public safety and without adversely effecting appearance rate among defendants?
And, so, I know that number one, it’s great that all of the stakeholders are here, but whenever you invite all the stakeholders to a summit, which is kind of euphemistic for reform, right? Nobody likes to be scrutinized and nobody likes to be criticized. And I was reminded of that two years ago when the Tampa Bay Times came out with its expose called, ‘Bias on the Bench’. Which talked about implicit bias of judges at sentencing. And I had already been on the appellate court for six years. So, I said, “Well, that’s the trial court judges’ problem – not mine.”
And then I went into the data and realized that all of my data was collected there. And I read it and I said, “That’s not me.” And I read that and I said, “Well, that’s not me.” Then I read that and I said, “Well, the data must be wrong cause I didn’t do that.”
And it took me, I would say, a couple weeks before I said, “You know what? I need to think about this. I need to think about it in the way that I handled the cases then.And whether we can handle it better and more effectively and whether there is an implicit bias on the bench throughout the state. And if so, what are the reasons why and can we improve on it? Can we change it?”
And I’d like to think about Pretrial Release and bail in that same vein. With the idea that we’re not here to criticize. We’re not here to scrutinize. We’re simply here to see: What’s the data we have? Can we collect the data any better, so that we are comparing apples and oranges? And can we do our job more effectively? That’s really why we’re here.
I’m interested in hearing from all of you, as well as from my fellow Panel members. And I thank you for being here and for the opportunity.
Kara Gross (ACLU of Florida) speaks:
We’re here today to try to figure out what is the best way to reach those mutual goals. From the civil rights and civil liberties perspective, I just want to highlight and go back to what you said. There’s sort of two things that we look at when we’re thinking about bail and Pretrial Release. The first is the presumption of innocence. That you are presumed innocent unless you are proven guilty. And what’s happening in Florida (and nationally) is that people are being warehoused in jail, behind bars, when they have not been convicted of a crime. So they are innocent, and yet we are taking them away from their family. We are taking them away from their jobs. We are taking them away from their childcare responsibilities. And we are spending tax payer money on housing them in jails and providing them food and medical expenses. And really disrupting the individuals’ lives and their livelihood and their ability to return back to society when they haven’t even done anything wrong that they have been convicted of. They are innocent. So, the first thing is the presumption of innocent and what does it mean when we are detaining people when they haven’t been convicted of a crime?
The second thing is, we have in our system a two-tiered system of criminal justice. So, there’s a system for those with means and there’s a criminal justice system for those without means. And in our money bail system, if you have money and you have resources, you can afford to buy your freedom. You can afford to get out of jail. And if you don’t, you then languish in jail and you’re taken away from your family, from your job, from your childcare responsibilities and all of the impacts that that has on an individual’s life. And the mere fact of having bail be set means that there has been a determination – a judicial determination – that the person is not a threat to society. Because you wouldn’t have anybody go out into the community if they were a threat. So, the mere fact that money bail exists means that the individual is not a threat to society, but yet, we’re locking people up and we’re depriving them of their livelihood and their liberty. Sometimes it’s been called ‘Wealth Based Detention’. They’re sort of two different systems that we have. I think of it more as ‘Wealth Based Release’ and ‘Poverty Based Detention’.
There’s a video I’m going to show right now that’s just a couple minutes, but it’s a documentary of New Jersey and what happened there. Because I think it’s really relevant here today, as the stakeholders to try and figure out what to do about this enormous problem that I think we all agree is not working for the mass majority of individuals who find themselves detained pretrial. And so, in New Jersey, the same thing happened, the stakeholders came together. They had an enormous problem before then. And they worked together, and they were able to come up with a solution. It may not be perfect. It may not work for Florida, but it just shows that they were able to come together like we are here and ask the hard questions. And it’s inspiring in that way.
Tom Palermo, Assistant United States Attorney in the Transitional Organized Crime Section at the U.S. Attorney’s Office in Tampa speaks:
A couple thoughts, one is I came from the State Attorney’s Office and then went to the U.S. Attorney’s Office. So, I bridge the divide between state and federal and have seen how both systems work. And I guess for me, I would say first and foremost, I think the state of Florida does some pretty amazing things on pretrial release and detention hearings. The most dangerous moment I ever had as an assistant state attorney was about 4:30 in the morning when I’d wake up on my duty week to take a shower. Run over to the courthouse. Try to find the printer that was printing out all of the CRAs (the criminal report affidavits). Try to find the NCICs that were popping off the other printer. Try to match the two of them together to run over to appear in front of the duty judge on Saturday morning and to try to explain to the duty judge what had happened in each one of the events that I was about to get asked about. To try to read the Sanskrit that was the NCICs and to try hopefully to keep both the state, the judge in state court from going astray and embarrassing myself and the state attorney.
It was a fairly terrifying thing and so the heroes to me at every detention hearing are those state court judges who are sitting there on the bench doing the best they can with incredibly limited information. And I say that because I’m a Fed now. And like the joke, ‘Everything is gift wrapped and bow tied for us.’ You know, I had four detention hearings this afternoon at two o’clock. We had pretrial services reports from our pretrial services unit that’s run by the court system. The reports were no less than six pages long.
We had information about where the defendant grew up, where they were, etc. The U.S. magistrate judges who are given the ability to render a decision about detention or release. They are armed with more information than a state court judge could dream of having for most cases. I think so many of the things that the state does that’s different from the federal system is just a function of the incredible volume that the state court sees. The Hillsborough County Courthouse does more cases in a week than the U.S. Department of Justice probably does in a year. The volume of cases coming in and out is extraordinary. And so, the first thing I tell you is my hats off to the state of Florida for the incredible men and women who are making hard decisions with limited information and quickly.
I’m not convinced that money bail is as broken as seems to be the trend in conversation. The two principles that we apply when we’re looking at detention are flight in danger to community and that’s what we base our determination as to whether or not someone should be detained or what the right conditions are for release.
The judge said he came from the ivory tower, but there is no ivory tower quite like the federal government. So, I’ll tell you, the first statute I could find that limited to bail discretion on the courts was the first statute of Westminster in 1275, which was followed on 414 years later by England’s Bill of Rights in 1689, which prohibited excessive bail. So, in many ways history is repeating itself. Here we are talking about perhaps excessive bail.
The Massachusetts Body of Liberties from 1641 included a right to bail and the Continental Congress included a right to bail as part of the Northwest Ordinance. The first Congress passed the Judiciary Act, which provided bail with discretion except in death cases.
The Bail Reform Act of 1966 was actually driven in part by a concern about monetary bail. This concept that people, because they couldn’t afford it were being unfairly detained, which is how we got a massive reform (I think) in 1966 of the Federal Detention system and we’re largely still governed by the 1984 Bail Reform Act, which is what controls the federal determinations.
We get a lot of cash bail in the federal system. But it’s not the same as the conversation would suggest in maybe New Jersey. A lot of the cash bonds that we deal with are signature bonds. So, the defendant isn’t actually putting up any money. It’s the risk to the defendant that they may, in fact, have to pay this notional $25,000 or $100,000 or $50,000 or whatever the number is.
The magistrate judges here in Tampa have done a great job of coming up with some innovative ways to address the concerns about risk, including signatures by family members, parents of the defendant on the bail paperwork. Again, it’s mostly notional in the eleven years that I’ve been an Assistant United States Attorney, I’ve never seen us forfeit anybody’s bail money. People have had their conditions of a release revoked. They’ve been taken in. But I’ve never once filed a motion to forfeit the bond. That just doesn’t happen (at least not in my practice). So, take that for what it’s worth.
New Jersey and California are obviously eliminating cash bail. It’s really sort of interesting to me to see the flip in rolls and the intersection of different folks in California who would otherwise be on polar opposite sides of the issue or coming together to oppose California’s replacement of cash bail. I mean, who knows how it’s all going to work. If Florida wants to do it, it might be kind of great for us to kind of see what happens in New Jersey and in California. And give it a little time to work out the kinks before we mess with the fourth largest states cash bail system.
But all I can tell you, as a prosecutor, I’ve been there. I’ve sat there at 5:30 in the morning trying to get ready for the bucket of release arguments that were common and just hoping I didn’t mess them up. I wish you guys had a pretrial release system that was more like the federal system in the sense that at least if everybody was armed with more information, the decisions that everybody was making about those flight risk and danger to the community issues could be more easily addressed. It’s just really hard to make that decision when all you’ve got is a CRA and a rap sheet that you hope is pulling the arrest for the right guy.
So, that’s sort of my perspective. I would be really curious to see what everybody is thinking. Maybe some of the long-term changes in Florida might just be thinking around the margins. Maybe it’s the practices of each individual circuit that might bear some scrutiny. But if I could say any one thing, it’d just be that my hats off to the guys who are making those decisions.
(QUESTIONS FOR TOM PALERMO)
Mark Hunter, Columbia County Sheriff speaks:
I thank you for being invited to the Panel. It’s very interesting. And from our perspective (as far as practitioners on the front lines) dealing with all the hype. I think we know what we don’t know. And the reason I say that is because we keep hearing all of these numbers that are being thrown out there and I don’t think there’s a consistency with the numbers and how they’ve been pulled around Florida. As a matter of fact, I know they haven’t because when we started talking about the reform, I actually looked at our jail and our numbers on folks to see if there was anybody so-called ‘languishing in jail’ and the raw data that we pulled out – we need to get a consistent formula across the state to be able to say how many folks when they bail, whether it’s $5,000, $10,000 or whatever and how long are they staying in jail.
We found that hours were not languishing in jail. The problem that you have in there is the mix. You’ve got your VOPs and (as stated earlier) you have court-ordered child support and those are being looked at as bail as well. So, you wind up with somebody that didn’t pay their $256.22. Well, they’re arrested or there’s a warrant. They have to stay in jail until they pay that amount. Well, here that’s considered ‘bond’. That’s used in the numbers, but we don’t see that we have folks languishing in our jail. It does us no good as a sheriff, who the majority of the sheriffs in the state of Florida are responsible, for operating the jails and it does cost money. The other number that was used earlier about the $60.00 a day for folks to stay in jail, that’s a sliding number as well. I also said on the Florida Model Jail Standards Committee and that’s one of the things we are working on now with a sub-committee trying to get a standardized formula to say, ‘What does it cost to house an inmate in a County Detention Facility and we should have that out this year, which I think is really going to help us. But what are the factors that are being used by every facility. This is the standard. We’re going to set the standard to say, ‘This is what you’ll use to determine the cost of the inmate.”
When we get to looking at our jail populations (and I’ve heard some conversation earlier about the use of notices to appear or the civil citations) we’re already doing that. I do not have a pretrial program in my county. And I noticed it got quiet and even quieter. But that’s because we work with our judicial system and the folks that are in there. When I pull the numbers to look at the $5,000 or less on the bail, if someone’s not making bail within just a few days, they’re already looking at bond reduction for those people. If not, looking to the judicial with our judges to be able to say, “Can we release this person?”
But there’s going to have to be built-in discretion because we do have violent offenders. If we do the brushstroke that covers everything, we’re going to be releasing some people that are violent. And they’re going to go back out and folks are going to be re-victimized.
The other thing to is, when we look at the pretrial, and let’s not kid anybody here. This is going to cost a lot of money and we’re already (and I’m preaching to the choir) strapped for funds to be able to operate as is within our court systems. And so, when we throw these pretrial programs in there, that means we’re going to have to hire pretrial officers. We’re going to have to do these programs. I think it’s great they are doing a pilot program now because I want to see how that works. I think they have Sheriff Calteri working on that now with that program. But I don’t think we need to rush into this and I agree with Thomas. Let’s see how these work with New Jersey because all that’s being painted up here about New Jersey (about it going so well) I do have the counter to that.
One of the Assemblymen up there (I’m sure that you’re aware of the Assemblyman that wrote the letter to California – the one that says, “Do not do this.”) In his letter that he wrote, he put in there, “We were told that there would no longer be danger to our citizens because the dangerous criminals would not be released and only low-level criminals would be eligible. The reality is the dangerous career criminals ARE released daily within hours of arrest. We should never have considered free bail to those who commit crimes where their citizens have been victimized. The other thing is that we’ve transferred the cost of the free bail to the tax payers rather than to offenders.
And, you know, I guess I’m of the opinion that you know when folks offend then there’s got to be consequences, I certainly, my job, I had an old sheriff told me once, he said, “We’ve got the most dangerous job that you’ll ever have in your life, Mark.”
He said, “We work all day to put people in jail and the very next day we’re working as hard as we can to try to help those people and get them out of jail and help them get their lives back together.”
I think there’s are some inconsistencies with around the state. One brushstroke is not going to fix this. The larger counties, the larger cities, where they have such volume, we may need to look at something with those, but in your smaller counties and your mid-size counties, I can tell you that the bail system works for us because we work with our judges on the VOPs making sure that those are not languishing in jail and that they are getting their hearings. And getting them put before the courts, so that they can be sentenced and moved on to the appropriate areas or be turned loose.
The bond schedule, I’m glad you brought that up. That’s something that we do in our county. We have a bond schedule and the deputies actually do have some discretion. But that baseline, they can’t go above that. And a deputy does have the authority, or sheriff, to ‘no bond’ someone until they go before a judge. And we need to maintain that discretion too because things that go on out here on the street, sometimes the deputies or the officers may have a lot more institutional knowledge that that person could be a danger back out into the public and then it’s not left totally with them and within 24 hours they’re going to be before that magistrate or before that judge. So, we need to make sure of that.
With the VOPs, I feel like we do a really good job of that. When I first came in, I’ve been sheriff ten years now, when I first came in we did have some overcrowding in our jails. We’ve got our public defender back here. We work well with him when we’re painting. Even though he’s on the other side, but most of the time, yep. He’ll fuss at me, “Let me sound like a good public defender is supposed to do.”
But I tell you, we have a very good working relationship. But I think, before we go into this, just as “it’s broke, it’s broke, it’s broke in Florida”.
I don’t think it is and I think that we need to look at the recidivism rate and actually how many of the failures to appear – I don’t think that those numbers are being reported accurately out of New Jersey. Am I wrong about that?
(The sheriff receives a response from Adrielle, “They haven’t reported. That’s still yet to come. They’ve reported their jail population and release rates.”)
I don’t think the numbers here in Florida, at this time, overall, are supporting a whole just…tear it all apart. I think that we need to go in and be very systematic with what we do. I think that part of this is working. The bail system, in my opinion, does work. I can tell you now that being in a smaller county, when I’ve had my citizens call me, and they call me all the time. I’m sure a lot of you judges and all you other folks get calls, but when they call me and Little Johnny’s in jail. He’s got to go to work the next day. Then I get on the phone and I speak with the judge and then we work it out to get that person released or getting a bond reduction to where they can handle it. But they still need to have some consequences for their actions. And let’s not forget that. They did something wrong to be put in jail.
“There is still the presumption of innocence. So, that’s important to remember with all due respect. And I think you’re right. I think small circuits and small counties are a different animal than comparing your county with Duval, Palm Beach County or Miami-Dade – you know – you don’t really have the sheriff and the judge talking and saying, ‘How are we going to work this thing out’. That’s different, but I still think there’s a need for some consistency even though one size doesn’t fit all. And there may be a better job at collecting information so that we can gauge an appropriate recommendation throughout the state.
ANSWER FROM SHERIFF HUNTER:
I think that basing your decisions or your way ahead on accurate information is imperative. I mean, when you’re throwing the darts at the board that’s just not a good way to do business. We need to be able to be very precise with what we do as most informed as we possibly can and not just in ( I guess you would say) whole hog and just tear the system apart because I can tell you now this has got some underlying things that are going to cost a lot of money and that’s what they have found in New Jersey, as well as by hiring all of the pre-trial folks, the cost of the systems (as far as reoffending), those folks that aren’t showing up. When we set the court dates and all that, we’re so tight scheduled right now when people are not showing up and then we’re having to reschedule the courts, I mean it’s a scheduling nightmare. So, we’ve got to make sure that what we’re doing is that the folks are going to be showing up for court. And I will tell you this, it falls back on the sheriff’s offices to have to go back out and pick those individuals up. And then, how many times do we release them if we go pick them up for a failure to appear. Do we just continue to release them out and then have to keep picking them back up? I mean, if you get a bite at the apple at free trial and you’re released and then you come back in then you had your time to do, and so then we will hold you to see you get to court.
RESPONSE FROM PREVIOUS QUESTIONER:
But I don’t think that…I think when you’re talking about people with failures to appear, obviously that’s taken into consideration. When bail is discussed as to whether or not someone is going to be a flight risk, I think we’re trying…and I don’t know whether we’re talking about potentially violent crimes, what we’re talking about also…I think that we need to look at everything across the whole spectrum. First time offenders with ties to the community and non-violent offenses, as well as folks who are sort of recidivist. That’s the beauty of the review of it and that doesn’t mean it’s all going to tumble down. The fact is, although it may all be working very smoothly where you are and because you have that wonderful relationship may not necessarily be working so beautifully all over our very big diverse state. That’s why I think it’s good to have….”
RESPONSE FROM SHERIFF HUNTER:
And let me just say this, when we talk about….I have a (and I’m sure most of you do here) our probation and parole system….I can tell you now if I was ever convicted and sentenced and had the option to do parole or do straight time (which you will) there’s no way on God’s green earth that I would get on parole because it is a system that is set up for failure for the people that go on there with all of the reporting, the monies they have to pay and all that. And that’s one of the things that concerns me about pretrial. It’s the costs that are going to be associated with that individual being out or they going to have to be doing monitoring on them or they are going to be subject to drug tests. You know, different things like that. And who’s going to pay for that? And if it’s the individual, well we’re putting them right back into the situation….
(Sheriff was interrupted by the moderator in mid-sentence)
Well speaking about that Sheriff, I think that one of the issues or one of the reasons why this whole panel was kind of tasked and what we wanted to kind of do is to bring some recommendations to the overall steering committee on pretrial and kind of discuss…you know….obviously we’ve all talked about some of our issues here. I kind of also forgot to introduce myself. I’m Chelsea Murphy. I am the Florida State Director for Right on Crime Florida and I was going to give a little suggestion. One of our…one of the priorities that we are going to propose this year is a little something called pretrial transparency and it’s a little something that I ummm……(silent for several seconds)…I’m looking at this camera as in ‘I don’t know where this is going to be put in…but I was 20 years old I was arrested for a DUI and I was booked into a jail. I will not say which county because I don’t need anybody going to look up my mug shot. But I was arrested that went ahead through the whole booking process and then went to see a pretrial officer. They told me…(didn’t see a judge yet)…they said, “All right, you qualify for pretrial release.”
I said, “Ooh. What does that mean?”
They said, “Well, you can get out now.”
I said, “I don’t have to call mom and dad? I’m in.”
And…uh….ok…it’s time. So I signed paperwork and there I go. Well, it turns out that my casae was kind of good and it took about two years before we closed. Well, two years of pretrial release, which was a lot of fees: calling, having to pay $5.00 every time you blow, paying $45 being on pretrial release….yadda, yadda, yadda. So, basically this pretrial transparency and being…you know…Florida Sunshine State, trying to keep everything in the sunshine. Basically trying to give defendants…making sure defendants have their full options (knowing, understanding what they’re kind of getting into). Here’s your option for bond, here’s your option for bail, and here are the fines and fees that are going to be associated if you choose pretrial. By the way, if you don’t do these, you will end up back here. So, I think that everybody needs to understand their options. I didn’t understand that when I signed that ‘Oh by the way, you’re gonna be doing blah blah blah blah now. Now, if your indigent, obviously that doesn’t…you know…it’s a different situation and that’s great, but that doesn’t always…you know…each situation is different and I think that also…you know…there’s…we all have different views up here and I like to say that I’m…even thought I’m right on crime, I think that I’m a bit in the middle. I think that everyone has a role to play. I think Florida is a very unique state. I think that…you know…the bail industry isn’t going anywhere. Ummm….nobody shoot me. Ummm…but I think that it’s not going anywhere and I think that the pretrial…you know…and it’s not going anywhere, so how do we all learn to be effective? How do we get there and how do we make everyone…how do we do this all right and so I think that the data transparency bill is a first step in the right direction. I think the one that passed last year, I think…I know there’s some kinks that they’re working out trying to figure that out and Gipsy did a great job of her presentation today, but I think that…you know….trying to figure that out and little baby steps of trying to make sure that everyone can kind of play in the same level of field and not eliminate things. I think that’s something to think about. And how do we be constructive? So.
BOB WHITE, RETIRED SHERIFF SPEAKS:
I’m not officially speaking for the Florida Sheriff’s Association. I’m Bob White, retired sheriff in Pasco County. But I will tell you that Florida Sheriff’s Association will never denounce surety or money bail. All the while, they’ll never denounce pretrial. I had a pretrial program years ago and I dismantled it. It was too costly. It didn’t do what they said it was going to do. And since we dismantled the pretrial program in Pasco, it did not increase our bed status by one person. Not one. So, the problem that I have with pretrial release, if it’s a universal concept, is…I think…first of all…no judge really wants to do pretrial. Judge, would you go along with that? No judge really wants to do pretrial. I mean first appearance, excuse me.
Judge Kevin Emas responds: No, in fact, frankly I had a root canal the same day and I changed the root canal over the bond hearings.
Bob White Continues: I think what happens in the long run is if we have a universal pretrial program where you can’t have money bail and you can’t have surety bail, you will eventually have an appointed magistrate that will sit in pretrial because he won’t have to stand for election. He won’t get the ire of the public if he doesn’t let little Johnny out or a little Suzie out. The second thing is moms and dads will no longer be able to go down and get their little darling out of jail with money bond. And I think that’s going to be part of the problem. Then you have a bureaucracy that now is holding people in jail and deciding who gets out of jail. So, in Florida right now I think it’s working very well. We have pretrial and we have surety bail. And when you were speaking about the statistics earlier, I think we found out in the 2016 election that the population points are the East Coast and West Coast. If we’re taking data out of both of those coasts, we’re not considering the heartland. I don’t think we have any trouble in Florida. And to fix something that isn’t broken might not be productive.
Chief Judge of the Ninth Circuit Speaks:
I’m the chief judge of the Ninth Circuit, we’ve been working on trying to amend our administrative order that deals with pretrial release. It’s a bond schedule I want to talk just a little bit about. The tension that is created by that. First of all, I’d like to say I think everybody knows this but Florida, the law in Florida is that almost everyone whose arrested is entitled to be released unless you’ve committed a capital or life offense. And the proof is as evident as the presumption is great, you’re entitled to be released from jail now whether that’s pursuant to monetary bond or some other form of release. We release most people. And Keira, sometime people who we even think might be dangerous because we have to release some people. Even if we think they might pose a danger unless the state has filed a motion for pretrial detention which just doesn’t happen very often in my jurisdiction. I don’t know about the rest of the state.
But the point is this, I’m so…and everyone knows in Florida you’re entitled to see a judge after you’ve been detained. 24 hours after your detention it can be extended to 48 or maybe as much as 72 hours. A lot of circuits, myself included, have adopted bond schedules so that you can get out of jail between the moment of your release before you see a judge at first appearance. It’s hard to write that bond schedule without it just involving money and we’ve wrestled with this for a long time. My predecessor tried to amend that schedule to delegate to correction officials pretrial release employees. That if the person was scored low risk and low need on a risk assessment instrument, they could release them and, immediately, the bond industry sued us for delegation of our authority. And the county said, “We just need to settle this because we don’t think you’re on solid ground because it’s unclear whether you can delegate that power to a non-judicial officer. And so, what you could do is say is we’ll just eliminate our bond schedule and everyone who is arrested will sit in jail until they see a judge (much like the federal magistrate) 24 hours later.”
As soon as I even uttered those words, my county said, “Are you out of your mind? Because you’re just gonna explode our jail population. You’re gonna cost us hundreds of thousands of dollars a year. So, please don’t do that.”
So, we have a schedule between the moment of your arrest, before you see a judge at first appearance that’s driven by money and (I don’t know) I think almost everybody does.
The problem (and this is somewhat of our own creation – I think in my circuit and statewide) is, let’s take a brand-new judge or a judge who’s predominantly practices and presides at a civil court and then they go to weekend first appearances. They’re going, “I’m not familiar with the world of bond and this person’s been arrested and I’m not even sure what to set and so the bond schedule says $1,000, so I’ll just reaffirm that $1,000 and let’s keep moving. Not to mention, as Tom said, “Everybody on the weekend wants to get out of there before it’s dark outside.”
And so, there’s this sort of rush to get through the weekend first appearances. But we’ve sort of brought a problem on ourselves because I think a number of us (if we’re honest) – and when I say ‘a number of us’ I mean judges – do not follow the rules of criminal procedure or even our own statute by looking at ‘What kind of release can I impose that doesn’t involve money?’, which is the fourth criteria for releasing someone and we’ve gotten a little lazy about it and just defaulted to monetary bond. And that’s true for all kinds of reasons: Experience – there is a bond schedule that gives me some guidance. As the sheriff said, we had a case recently where a judge set a bond for an individual. Unfortunately, they got out and harmed someone and the media put the picture of who on TV. Not the defendant who hurt someone, the judge who had the temerity to post a bond for someone who, by the way, who was constitutionally entitled to bond.
So, you have these real life pressures on the trial judges as Tom said, ‘With very little kind of limited information (especially on the weekends). You have this general entitlement to bond for almost everyone in Florida. And then you have these bond schedules that allow people to get out before they even see a judge. And marrying all that together to come up with a system that doesn’t discriminate on the basis of wealth, which by (by the way) is almost undebatable. We shouldn’t discriminate about who do we keep in jail on the basis of wealth. That just seems to me to be something that’s gained so you can’t say, “Well, I don’t care if we discriminate based on wealth.”
But we DO discriminate based on wealth and the actual implementation of our bond schedule, so I think we have to work on that. Now, I’m in a larger county than Sheriff Hunter. And so, we have a lot of people coming through our jail. Although, because crime is down we have a lot of capacity in the jail too. But releasing people into the community who are low-risk, low-need and have low resources doesn’t offend me. In fact, I think they should be if we follow our own rules that say the first form of release you should look at under our rules are releasing the person on their own recognizance, which kind of rarely and then unsecured or…you know…and before you get to a surety bond. The bonding industry, let’s all be honest about this, is very powerful. So, they sued us as soon as we tried to delegate the authority to stand a non-judicial officer and they (years ago) were successful in convincing the legislature that rather than set one bond for maybe four listed offenses that the police arrest someone for…you now have to set bond for every offense that a non-lawyer lists on an arrest affidavit as ‘what might be charged’. I only mentioned that as an illustration of how powerful I think the bonding industry is. They’re a pretty powerful lobby here. And so, to kind of go away from monetary bond to some other system is going to be a political fight. I don’t know whether there’s a political will in Florida. But I do think we have to somehow figure out a system where someone is not sitting in jail who doesn’t pose a risk to the community, but simply doesn’t have $500, or $1000 or $1500 when someone charged with aggravated assault with a firearm who has some wealth got out before they even saw me because they could post a $5000 bond, which was on our bond schedule. That is just not a logical approach to both due process fairness and ensuring the safety of your community. But it’s much harder to do because if you eliminate your monetary bond, you know…before you see a judge, you’re gonna catch hell from your county. If you have any sighs, so, I’m sorry I went on so long, but I just wanted to share.
Rachel Logvin Responds:
Thank you, judge. I just wanted to share…offer a couple comments. Just for consideration of areas to examine inside of your comments. So, if you look and you know what the data is in the state of Florida of who those low-level low-risk folks are in your jails. If you know that and they’re evaluated, research shows with nothing more than a court reminder system, which is your least cost impactful pretrial service have a 95% success rate of appearance (statistically – just probability). There are always exceptions to human behavior. And there is no perfect system, whether you use monetary cash bond and are unsupervised or whether you fall into a system like New Jersey. But, for consideration is identifying who are those, measure them, know the probability of success and that there is still always human behavior and preparing your community for that.
Ummm…the other…ummm… are going around under very serious diction’s our ability to pay determinations. There’s no yet good model ability determination available yet, but many jurisdictions around the country are integrating that the other force that may be upon Florida likely in the next few months is litigation. There are four pending cases. One which we anticipate a more formal ruling that may call for the immediate non-monetary release of all those charged with misdemeanors in the state. So, whether you choose to approach pretrial improvements in a methodical way and sort of identify what the priorities are not – there may be forces beyond that that we’ve seen in jurisdictions and states around the country where you’re going to lose the ability to control it because of the force of litigation.
You also have, obviously, legislation which is uh..uh..uh.. and potential court rule changes, so there are many different avenues, but I just wanted to offer ways to approach that with good data, limited use of resources. I do want to say one thing and then I’ll turn it over to anyone else who wants to comment. I know we’re talking about New Jersey, but they release 95% of their jail population (those that are arrested). There is no perfect system, so there are going to be things that happen because you’re dealing with only private probability. They use an actuarial pretrial assessment tool. It’s a national tool that’s been validated. It is not a replacement of monetary bond schedules nor of judicial discretion. And so, it’s important to know what things are and what they’re not as you identify what’s best in Florida knowing what the data is around your jail population.