Malloy’s new pitch for bail and juvenile justice reforms

A year after legislators rebuffed him, Gov. Dannel P. Malloy is back with revised versions of proposals that would reform Connecticut’s bail system and expand the jurisdiction of its juvenile courts, issues that have edged closer to the mainstream of criminal-justice thinking in the U.S.

The underlying principles remain the same, reflecting a belief by Malloy that too many defendants are jailed because of an inability to afford modest bails and that the court system should be more protective of criminal defendants until the age of 21.

But the strategies for passage and the measures themselves have evolved in the year since Malloy proposed them to a cautious and, ultimately, unwilling General Assembly as one omnibus bill, the latest in a series of what the Democratic governor has branded as his “Second Chance Society” initiatives.

The administration is proposing separate bills this year that accommodate some objections by legislators and suggestions by judges, prosecutors and others. His bail proposals now align with changes adopted by a growing list of states, as well as recommendations made this month by the Connecticut Sentencing Commission.

“This is reality catching up with Connecticut,” Malloy said.

A debate over ‘raise-the-age’

His call to raise the age from 18 to 21 for defendants to remain under the jurisdiction of the juvenile courts, primarily to shield them from adult criminal records, is more controversial, even if praised by some leading juvenile-justice experts as the right approach to a segment of an especially challenging demographic.

Young adults aged 18 to 24 comprise just 10 percent of the U.S. population, but they account for 30 percent of all arrests and more 20 percent of all admissions to state and federal prisons, according to data recently published by the Council of State Governments. In a state that until recently tried 16- and 17-year-olds in adult court, Malloy has found raising the age beyond 18 to be a tough sell.

“I think a lot of people want to accomplish what it seeks to accomplish, which is fewer young people in jail,” said Rep. William Tong, D-Stamford, co-chair of the Judiciary Committee. People struggled with the details last year. This is not easy stuff.”

For the third time in three years, Malloy is trying to contribute to a reduction in the rate of incarceration in the U.S., which is by far the world’s highest, and to improve the chances for the young to rebound from their earliest brushes with the criminal justice system.

During a special session in 2015, the first year of Malloy’s second term, the General Assembly gave bipartisan approval to a bill that reclassified most drug possession crimes as misdemeanors. A year later, as non-partisan legislative analysts predicted, the prison populated dropped by 1,130 inmates, while the overall crime rate continued to fall.

His bail and raise-the-age reforms foundered 2016, an election year for legislators. Expanding the jurisdiction of the juvenile courts played better at Harvard, where Malloy was invited to speak a year ago at the Kennedy School of Government, than in Hartford.

Opponents equated keeping 18-, 19- and 20-year-olds in juvenile court with excusing them from criminal responsibility. They noted that 18-year-olds are trusted to vote and enlist in the military, even if they cannot buy alcohol until 21.

Malloy’s new bill creates creates a hybrid system, rather than a simple expansion of the jurisdiction of juvenile courts. It creates a new legal category of young adult, ages 18 through 20, who would be afforded some protections of the juvenile system. For example, their court proceedings would not be closed, but their records would be confidential.

Colorado, Florida, Michigan and Vermont are among the states with similar laws, according to the Council of State Governments.

Young adults accused of serious crimes would face an automatic transfer of their cases to adult court, but their records could be sealed after four years and judges would have the discretion to impose a lesser sentence than would be required of older defendants convicted of the same crime.

“Raise-the-age is not where we started last year, it’s where we ended up,” said Michael P. Lawlor, the governor’s criminal justice adviser.

Bail industry says system needs no reform

Malloy’s bail reforms were less controversial than raise-the-age last year, but they never came to a vote. About one quarter of the 14,800 inmates in Connecticut prisons are defendants awaiting trial or sentencing.

Based on an average stay of 96 days, their marginal additional cost to the state is an estimated $70 million annually.

The recently released study by the Connecticut Sentencing Commission, whose members include judges, prosecutors, defense lawyers and police, recommends changes similar to ones proposed by Malloy.

“That’s significant, because that’s made up of judges and prosecutors and others. So it’s kind of an independent validation,” Malloy said.

But the commission somewhat undermined the governor’s call for reforms by concluding that the state already has one of the nation’s lowest rates of pretrial incarceration and that it makes reasonable decisions on bail.

About 14 percent of defendants taken into custody by police are held on some type of financial bond until their case has a verdict, according to the commission. The number who are being held solely because of inability to afford a modest bail is a matter of debate.

The commission warned it “cannot conclusively answer whether any persons in Connecticut remain in detention solely because they cannot raise monetary bail, and if so, how many. The available data is, however, consistent with the possibility that this does occur.”

The state’s Court Support Services Division, which reviews the bail of anyone not released by police after their arrest, uses a risk-assessment tool that considers the charge and things like criminal history, education, mental health, marital and employment status, and previous failure to appear in court to set appropriate levels of bail.

The tool has been validated by study, and the division is the only such agency in the country accredited by the National Association of Pretrial Agencies.

“It’s proven to be among the best, if not the best in the country,” said Andrew Marocchini, the president of the Bail Association of Connecticut. He says Malloy seems to be “seeking a solution for a non-existent problem.”

But Marocchini said his organization still was reviewing Malloy’s legislation and had no formal position. The bill was filed last week, and a public hearing has yet to be scheduled.

Malloy’s bill last year would have banned judges from setting a money bail for defendants charged with most misdemeanors, but bail bond agents say defendants who fail to make bail on misdemeanor charges typically have serious criminal histories or a previous failure to appear.

The new version bans the use of money bail for misdemeanors except where a judge finds the defendant is a risk to others or has a history of failing to appear for court dates.

Judges also could allow a defendant to pay a 10 percent cash deposit in lieu of paying the full bail, as they now do with bail bond agents. The difference is that the deposit would be refundable if defendants meet the terms of bail, while the fees to bail agents are not.

In Connecticut, bondsmen charge a 10 percent fee for bond amounts between $500 and $5,000 and an additional 7 percent for the bonds over $5,000. So, to post a $25,000 bond, a bondsman charges a non-refundable fee of $1,900: $500 for the first $5,000 and $1,400 for the $20,000 balance.

The bill also tightens requirements for bond agents to pay on bonds forfeited by defendants who fail to appear for court. Connecticut now provides a six-month grace period before forfeited bonds are paid to the state, and they generally are steeply discounted.

According to a study by the National Conference of State Legislatures, the terms are more generous to the bond agents than in most other states.