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Federal court rules in favor of bail reform

| July 13, 2018

A federal court’s recent ruling in favor of New Jersey’s cash bail reform should embolden lawmakers’ efforts to re-center their criminal justice systems on public safety.

U.S. Third Circuit Court of Appeals rejected a lawsuit against the state of New Jersey in which a bail bond company maintained that a violent offender was denied his constitutional right to cash bail. Unfortunately for the defendant, there is no such right.

Colleen O’Dea of New Jersey Spotlight reported the following details from the decision:

Writing for the court, Judge Thomas L. Ambro stated that there is no “federal constitutional right to deposit money or obtain a corporate surety bond to ensure a criminal defendant’s future appearance in court as an equal alternative to nonmonetary conditions of pretrial release.”

This position on pretrial release resonates with the conclusion of Right on Crime’s most recent research on pretrial incarceration. While high amounts of cash bail can be used to prevent violent offenders from wandering free throughout the community while they await trial, the same safeguard can be achieved by simply denying bail on public safety grounds. This was the case for defendant Brittan Holland who was charged with second-degree aggravated assault last year.

Due to reforms New Jersey’s lawmakers passed in 2014 (and put into practice in 2016), the court had access to a risk-assessment tool which indicated that Holland was a likely threat to public safety. That’s why the judge decided to hold him in jail, without bail, while awaiting trial. Holland’s public defender negotiated that decision down to supervised release. So, in addition to suing the state over being denied cash bail, the bail-bond company that defended Holland argued his Fourth Amendment right had been violated by having to wear an ankle bracelet. The judges did not sympathize with this argument.

Ambro wrote that the judges “do not accept as given that placing an electronic monitor on an individual and then tracking his whereabouts always constitute a search and seizure, and that home detention is a seizure.”

New Jersey’s bail system overhaul went into effect roughly a year and a half ago, and early progress reports are promising. In 2014, when the legislation was put up for vote, public safety was a huge impetus, as it should be in all criminal justice policies. However, another critical factor that should not be overlooked is pretrial liberty. It should not be taken lightly when a person’s freedom is taken away, and that’s essentially what lawmakers and voters agreed upon in passing bail reform. The former system jailed countless low-income individuals simply due to their inability to afford bail. It was costing the state far too much with diminishing returns for public safety.

Now, more individuals are being released—some under community supervision, depending on their risk-assessment results—which can cost-effectively reduce unnecessary incarceration while improving public safety. This by no means lets anyone off the hook. New research by Right on Crime’s Marc Levin and Michael Haugen cited that after state-wide risk assessments were adopted throughout Kentucky in 2013, court appearances remained stable while new criminal behavior by those released dropped 15 percent.

Expanded use of pretrial risk assessments is one of the recommendations Levin and Haugen make, as it has proven to help judges ensure that the right people are locked up – and released – in multiple states.

Across the nation, support for pretrial liberty is spreading. National Review just published the findings of a new poll which revealed a healthy percentage of Americans support various aspects of bail reform. One of the most telling responses was in regards to the importance placed on public safety: “70 percent of those polled said public safety should be the primary concern when deciding whom to detain before trial.”

Public safety was the bottom line that lost Holland his case. It is, and will always be, the foundation of Right on Crime.

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KATIE GREER joined Right on Crime in April 2017 and currently serves as the Communications Manager.

Before joining Right on Crime, Greer most recently worked as a Communications Specialist for a statewide trade association. She came to Austin by way of lobbyist Bill Pewitt after successfully campaigning to elect Texas’ 48th Governor Greg Abbott. A 5th generation Texan, Greer took a detour to Mississippi where she earned a Bachelors in Communication Studies from Millsaps College. She came back to Texas as fast as she could.

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