Malloy tells D.C. audience bail reform on his agenda in 2017

Gov. Dannel P. Malloy

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Gov. Dannel P. Malloy

Gov. Dannel P. Malloy told a criminal justice conference in Washington D.C. on Thursday he intends make another attempt in 2017 at bail reform, one of his “Second Chance Society” initiatives that never came to a vote in 2016.

Malloy, a leader in a bipartisan national movement to reverse decades of policies that have given the U.S. the highest incarceration rate in the world, said he will seek changes to minimize the number of inmates locked up pretrial because of their inability to afford bails ranging from a dollar to $2,000.

“When you are incarcerating 400 people at a cost of $168 a day for periods of up to nine or 10 months on that kind of bail, it doesn’t make any sense unless there is a finding they are a threat to themselves or broader society,” Malloy said. “I tried to get that done. We’re going to try again this year year.”

Malloy shared a stage with Gov. John Bel Edwards of Louisiana, the state with the highest incarceration rate, at the Google Summit on Justice Reform. Edwards, a Democrat, was elected on a platform of prison reform, arguing that prison spending was bankrupting his state without making its citizens safer.

In a telephone interview after the conference, Malloy said his bail proposal would be revised to consider objections raised in 2016 — and, presumably, new political realities in 2017. The loss of Democratic seats on Nov. 8 means the state Senate will be evenly divided and House Democrats will have the chamber’s smallest working majority, 79-72.

“I’m open to various ideas on bail reform,” Malloy said. “I think we’ve got to get it done before there is a [legal] challenge  to our bail system. If we were challenged the same way Indiana was challenged, I think we would lose.”

The Indiana Supreme Court, after a three-year study, issued an order in September limiting the use of cash and surety bonds in favor of using risk-based assessments to decide if a defendant would be jailed awaiting trial.

“The primary purpose of monetary bail and other conditions of release from pretrial detention are to maximize the likelihood of an accused person’s presence at trial while striving for both public safety and protection of the presumption of innocence,” the court said. “The prompt release of arrestees who do not pose a risk to public safety is associated with reduced recidivism and eliminates unnecessary expenses resulting from the over-utilization of local jail resources.”

Malloy indicated during the conference that one approach to bail reform might be for judges, who already have to assess if a defendant is indigent and should be appointed a public defender, to make a formal finding about the ability to afford bail. If the result of a $100 bail is months in jail, a judge should know that, Malloy said.

Pretrial detainees are a significant portion of the prison population in Connecticut, which has no local or county jails. Only 10,972 of the 14,814 inmates in Connecticut prisons on Thursday were serving sentences. The other 3,842 were awaiting trial or sentencing.

In the last session, Malloy proposed essentially eliminating bail for minor crimes and establishing a new system for more serious crimes in which defendants could be freed pretrial by posting a returnable cash bail of 10 percent — the same as the 10-percent non-refundable fees many defendants pay to bail bond companies.

The bail industry accepted the former and opposed the latter. But House Speaker J. Brendan Sharkey, D-Hamden, declined to call the bill in the session’s final days after Republicans produced data indicating that some of those held on low bail for minor crimes had records that made them bad risks for release without bond.

Michael P. Lawlor, the governor’s criminal justice advisor, said the effort last year was constructive, even if it failed to yield a new law.

“Last year, for the first time ever, really, legislators, prosecutors, judges and the governor’s staff engaged about pretrial detention and looked at the data,” said Lawlor, the former co-chair of the legislature’s Judiciary Committee. “I think everyone learned a lot from that process.”

One sign of a new sensitivity about the factors that can affect pretrial detention is the court system’s quick response to a staffing change that resulted in a spike of detainees awaiting trial.

A staff of nine used to do jail re-interviews of pretrial detainees who couldn’t make bail at their first court appearance. The goal was to find out why — and to see if conditions could be crafted to allow their release.

With budget cuts, five of the nine positions fell vacant because of layoffs and one retirement. Correction Commissioner Scott Semple recently notified Judge Patrick L. Carroll III, the chief court administrator, that the result of those ostensibly cost-saving cuts actually was a dramatic increase of 150 inmates in the pretrial population – and additional cost to the state.

“Understanding the commissioner’s concern and the importance of the issue, I directed that three laid off jail re-interviewing staff be recalled, and we are currently in the process of doing so,” Carroll said. The judge added, “We are in regular communication with Commissioner Semple and cooperate on many important criminal justice initiatives.”

Overall, the number of inmates is down 1,200 from a year ago, a trend that is allowing the Department of Correction to simultaneously cut its budget and improve service to prepare inmates for release. The department began the fiscal biennium on July 1, 2015 with an annual budget of $692 million.

Lawlor said annual spending in the second year is expected to be $613 million.

At the same time, Connecticut has seen its crime rate fall faster than in most other states, which has given Malloy political cover to pursue further reforms.

Edwards, the governor of Louisiana, said his campaign should encourage other elected officials not to fear criminal justice reform.

“I made it a campaign issue. It was vigorous. My opponent went after me on television saying I was going to open the doors to prisons, and I beat him handily,” Edwards said. “I believe I have a mandate.”

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