Criminal-justice reformer questions Malloy’s approach to bail

Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute.

PJI

Cherise Fanno Burdeen

Gov. Dannel P. Malloy’s proposal to begin an overhaul of Connecticut’s bail system with the limited step of eliminating bail for non-violent misdemeanors is viewed by the head of a national reform group as a political compromise of questionable value.

Cherise Fanno Burdeen, the executive director of the Pretrial Justice Institute, a well-established group that studies and advocates for bail reform, said she has told the Malloy administration she is unaware of any state that has taken a similar approach.

“I absolutely understand the pressure to find common ground so that you can get something through,” Burdeen said.

But she said the best-practices approach to bail and pre-trial detention, a national subject of intense research and debate since a U.S. Department of Justice symposium in 2011, is assessment of an individual’s risk of flight or violence, not the elimination of bond based on the criminal charge on which a defendant is being held.

“I don’t see the logic in articulating a reform that’s based on charge,” Burdeen said. “You could have someone arrested for a low-level, non-violent misdemeanor who has an incredibly lengthy criminal history, who has a violent history.”

Conversely, Burdeen said, a defendant facing a felony may be assessed as a good risk for release without bail.

“I would rather see pilot projects happening where courts would be willing to experiment with releasing an identified group of people after risk assessments without financial conditions of release, tracking that outcome over six months and then having actual Connecticut data,” she said.

Michael P. Lawlor, the criminal justice advisor to the governor, lobbying outside the House.

mark pazniokas / ctmirror.org

Michael P. Lawlor, the criminal justice advisor to the governor, lobbying outside the House.

Michael P. Lawlor, the governor’s criminal justice adviser, said the administration’s proposal has an element of risk assessment in that judges still would have discretion to require bail for misdemeanors based on a defendant’s criminal history.

While noting that the Connecticut Sentencing Commission already is examining more sweeping changes in the bail system at the request of the governor, Lawlor said the administration saw non-violent misdemeanors as a place suitable for immediate change.

“We should totally reboot our bail system. That’s a heavy lift,” Lawlor said. “You can’t push that through without a warmup, and that’s what’s going on.”

But the so-called warmup – a proposal that would affect hundreds of the 3,000 defendants awaiting trial in jail at any given time – has turned into a major political contest as the summer of an election year slides into view.

The fate of the Malloy administration’s bail proposal could be resolved today when members of the House Democratic majority are briefed in caucus on the revised plan that once was an element of a larger criminal justice reform. Leaders are expected to gauge how many House members would vote the bill.

Republicans have challenged Malloy about the impact of changes, signaling they see the issue as campaign fodder in an unsettled year when Democrats already are nervous about losing control of a legislative chamber in Hartford for the first time since 1994, when the GOP won and briefly held a 19-17 majority in the Senate.

The Republican minority leaders, Sen. Len Fasano of North Haven and Rep. Themis Klarides of Derby, said Wednesday their analysis of data obtained from the Judicial Department indicates that a majority of defendants who could qualify for bond-free release have three prior convictions.

Sen. Len Fasano and Rep. Themis Klarides

ctmirror.org

Sen. Len Fasano and Rep. Themis Klarides

“Connecticut needs to remain firm when it comes to violent offenders and predators,” Klarides said. “We should also make sure our courts always consider a person’s full history before setting their bond. Republicans agree with Democrats that no one should be kept in jail simply because they are poor and they cannot afford to pay a modest bond. However, in adjusting the law to help poor individuals and to help the state save money, we cannot simultaneously sacrifice public safety.”

On Tuesday, the GOP leaders expressed a willingness to support a narrowly drawn bill.

“It’s astonishing watching Republican leaders backpedal on common-sense criminal justice reforms. All they are trying to do is get to ‘no’. And it’s clear that they would rather make impoverished citizens – many from urban areas – sit in jail rather than save millions in taxpayer dollars,” said Devon Puglia, the governor’s spokesman.

The fight in Connecticut comes five years after President Obama’s first attorney general, Eric Holder, sponsored a symposium on what Burdeen called a long-overlooked criminal justice issue: pretrial incarceration that she says often has life-changing consequences for defendants, even if they are eventually exonerated or charges are dismissed.

Low-risk defendants who are detained for the inability to post bond see a cascade of consequences, including the loss of a job or even a home. At the other extreme are the dangerous defendants who are freed without a risk assessment because they can make bond.

“This was the single-biggest criminal justice reform issue that no one was talking about,” she said.

The symposium, held in the first year Malloy was governor, drew the attention of foundations that began funding research into the development of data-based risk-assessment to make decisions about pretrial release or detention.

“We’ve gone from, in 2011, there was maybe $400,000 or $500,000 annually being invested in pretrial reform, to now we’re talking probably close to $100 million being invested,” Burdeen said. “I call that a pretty significant outcome of the national symposium.”

A year later, the Justice Policy Institute called for an end to cash bail, calling it an arbitrary system not guided by the use of risk assessments or national standards. In Connecticut, the conservative Yankee Institute urged the legislature Wednesday to move “from a cash bail system to the use of a data-driven risk assessment tool to determine the best individualized approach for each defendant.”

Kentucky, Washington, D.C., and various county court systems either abandoned or curtailed cash bail systems and began relying on risk assessments. Underlying the reforms was data showing that 85 percent of defendants were deemed safe for bail, with their freedom or detention dependent on their financial resources.

Malloy embraced criminal justice reform after his re-election to a second term in 2014. Last year, he won passage of what he called his Second Chance initiatives, which included a repeal of mandatory minimum sentences for drug possession.

He proposed more ambitious changes this year: Bail reform and raising the age of adult criminal responsibility to 21 for most crimes other than serious felonies. In the face of legislative opposition, Malloy set aside the raise-the-age provision to focus on bail.

In April, the MacArthur Foundation awarded Connecticut, whose crime rate is at a 40-year low, a $2.5 million grant as part of its Safety and Justice Challenge to invest in innovations to further reduce its pretrial detention population over the next two years. An element of the grant is a study of racial disparities.

“There is clearly some evidence of some disparities, and we are trying to further refine that analysis,” Lawlor said.

Burdeen said the MacArthur grant is a sign that Connecticut is recognized as being engaged on the issue of bail reform, regardless of what happens in the General Assembly this year.

“We’re excited for Connecticut,” she said. “I think there are great opportunities.”

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