Best of 2020: ‘Why are we suffering if he’s innocent until proven guilty?’ Cash bail in the COVID era
This story was originally published on November 18, 2020.
When the stress and anxiety overwhelm her, Samaris Smith kneels at the altar she erected in her home and covers her head with a cloth blessed by her pastor.
She prays for relief from the burdens of life. She prays that she doesn’t run out of money. She prays that her business flourishes.
But always in her line of sight is a piece of paper on which she’s written another list — a series of requests she hopes God grants immediately.
“To turn my kids’ behavior around, to save my whole household,” Samaris said, reading from the paper, “and to bring Jermaine home.”
Samaris’ husband, Jermaine, has been locked up at the Bridgeport Correctional Center since Dec. 16, 2019, on drug and gun charges, but he’s not serving a sentence for a crime. He hasn’t been convicted of anything.
Technically, Jermaine can walk out of jail whenever he wants. He just has to post 10% of a $150,000 bond — or pay around $5,000 to a bail bondsman up front, then work out a payment plan — an amount well outside the family’s financial means. He filed a motion for an emergency bond reduction in March so he can fight his case from outside the Bridgeport jail, spared from catching COVID-19 while he’s locked up.
It wasn’t successful. He’s still behind bars, a mile and a half from the house he purchased with his wife, where they’re raising five children.
It’s blatantly unconstitutional, and everybody knows it.”
What’s exceptional about Smith’s case is how commonplace it is in Connecticut. More than 2,800 people were held on bail in correctional facilities on Oct. 1, more than 60% of whom had bond amounts of $100,000 or higher. Almost 330 people were being held on bond amounts of less than $20,000, meaning they would only need to post around $2,000 to get out — or less, if they use a bail bondsman.
“I think we have a system in Connecticut where the monetary conditions for certain defendants is used as a de-facto detention order,” said Alex Taubes, an attorney who is representing Smith pro bono in his bond modification case.
Jermaine’s experience underscores long-standing systemic problems with Connecticut’s cash bail system, which Alex Tsarkov, executive director of the Connecticut Sentencing Commission, called “the most nonsensical part of the criminal justice system.”
Connecticut’s bail system is hardly an exception. Money is a condition of release or detention in the vast majority of pretrial systems throughout the United States.
There are exceptions. In Washington, D.C., New Jersey, New Mexico and the federal judicial system, money bail is rarely imposed. In those jurisdictions, pretrial detention is based on judges’ assessments of whether the potential danger posed by a defendant requires them to be locked up pretrial without bail.
Connecticut’s constitution does not allow people to be detained without bail, except for capital offenses. Money is a proxy for risk. If a judge sets a high bond, it means the court sees the defendant as a greater risk to public safety and less likely to show up for trial. If the judge sets a lower bond amount, it means the defendant is considered less dangerous and less likely to skip town.
But when two defendants are charged with the same crime and assigned the same bond amount, the only thing that separates them from posting bond is their access to financial resources, said Tsarkov.
“I don’t fault anyone for using money to detain someone, because that’s the only tool available,” Tsarkov said. “Which is absurd, but that’s the only way to detain someone who truly poses a threat to public safety.”
The state constitution also prohibits “excessive bail.” But in practice, Tsarkov said, pricing people out of their freedom via a high bond is not uncommon.
“It’s blatantly unconstitutional,” Tsarkov said, “and everybody knows it.”
The looming threat of COVID-19
Police reports detail how Jermaine wound up behind bars. Last December, Bridgeport Police got a tip from a confidential informant: someone living in the city’s South End was selling crack cocaine from their home. The man, whom the informant identified as Jermaine, also had a gun.
The possession of a firearm was significant because Jermaine had been convicted of crimes before. He served a five-year jail sentence for robbery in 2000 and had been convicted of carrying a pistol without a permit, selling and possessing drugs, and failing to appear in court. He hadn’t gotten in trouble with the law since 2016, when he’d been arrested for driving under the influence. He was sentenced to two years of probation.
On Dec. 13, 2019, Bridgeport Police arrested Jermaine after an undercover cop texted him to buy drugs. Fearing that whomever was inside Jermaine’s house would destroy evidence, members of the police department’s Emergency Services Unit — the city’s equivalent of a SWAT team — stormed into the Smith home as the PA system in their BearCat armored vehicle announced that they were police executing a search warrant.
Two of Jermaine and Samaris’ children were in the house at the time.
“They’re traumatized from it, even now,” Samaris said.
Police found two guns and $1,365 in cash, but no drugs. They found several black scales, which they identified in a police report as a tool for selling illicit substances. Smith was charged with criminal possession of a firearm and ammunition, carrying a pistol without a permit and criminal attempted sale of narcotics.
His bond was set at $250,000.
Three months later, COVID-19 hit, impacting places with congregant settings like nursing homes and prisons especially hard. Bridgeport Correctional Center has had 140 cases of the virus since March, according to the Department of Correction.
Samaris worries about her husband, a 41-year-old asthmatic with sleep apnea who is locked up in a dormitory-style housing unit, making it virtually impossible to practice social distancing.
When Jermaine first was admitted to the jail, he’d been assigned a top bunk in his cell. He had to get the Attorney General’s Office involved so he could get permission to sleep in a bottom bunk.
“Due to his asthma, due to the shortness of breath and the problems that he has from his asthma, he can’t even climb up onto the top bunk,” Taubes wrote in a legal filing.
“It’s been scary during the pandemic, knowing it can affect people with respiratory problems,” said Samaris.
The Supreme Court’s roadmap
Taubes appealed Jermaine’s emergency bond reduction motion all the way to the state Supreme Court. Connecticut’s highest court declined to hear the case but issued a highly unusual per curiam opinion, meaning no justices’ names were attached, that provided a road map for Taubes and other attorneys to get a bond case before the Supreme Court.
The justices identified three concerns that led to their decision not to exercise jurisdiction over Jermaine’s case. First, Jermaine hadn’t raised specific evidence backing up his health problems. Second, he hadn’t argued to a judge that the Department of Correction had failed to contain COVID-19 in the Bridgeport Correctional Center. And third, the justices did not have a sense as to the scope beyond the current case.
“We do not know if any other pretrial detainees have raised similar claims, or whether there is in fact a systemic need for the type of procedural guidance that we anticipate would be required with respect to pretrial detention during this pandemic,” the court wrote in the opinion published on July 28.
“They’re sending a message: Tell us what’s going on so we can issue proper orders,” said Wes Horton, senior partner at Horton Dowd Bartschi & Levesque PC, an appellate specialist who closely monitors the state Supreme Court.
‘I can’t afford to lose a penny’
After the Supreme Court’s dismissal, Taubes filed for a new motion for a bond modification, asking the court to reduce his $250,000 bond.
On the morning of Sept. 23, Samaris prayed at her altar before a hearing to consider Taubes’ latest legal filings.
In a Bridgeport courthouse later that day, Samaris told Judge Tracy Lee Dayton that Jermaine has a job at a construction agency waiting for him when he gets out of jail and that the pandemic has profoundly affected her family’s finances.
Samaris, who has lost almost 60 pounds from the stress of her husband being locked up, has entered into forbearance for her mortgage so she wouldn’t lose the house they bought.
Samaris told the judge that, in the 25 years she’d known Jermaine, he’s never been a violent man. She said she didn’t have the money to post the $250,000 bail to get him out of jail, nor could she finance a plan with a bail bondsman.
“We’d be paying a bail bondsman for the rest of our lives,” Samaris told Dayton. “With this bond out he has now, it’s just — it’s just not realistic.”
Samaris asked the court to reduce Jermaine’s bond to $25,000, with a 10% option. That way, she figured she’d only have to raise about $2,500.
“As long as I know we’re getting it back,” Samaris said later, “because I can’t afford to lose a penny.”
The judge chided Taubes for his court filings claiming that Jermaine didn’t have a violent criminal history, noting that he had been convicted of first-degree robbery, which she considered to be a violent crime. Taubes countered that the charge was two decades ago, when Smith was 21 years old.
“The defendant has matured greatly since then, has no subsequent violent charges or convictions on his record,” Taubes said.
Dayton reiterated what she heard from the bail commissioner: Jermaine has a pending drug and gun case, a probation violation from an operating under the influence charge from 2017, a possession of narcotics and criminal possession of a weapon charge from 2013 that resulted in a three-year jail sentence and probation, and two previous failures to appear.
“He had a gun on him and a gun in his house when he’s a convicted felon,” Dayton said. “I think this is a dangerous offense. He is alleged to be selling narcotics. He’s alleged to have a fully loaded gun on his person and another one in the house where his children are living.”
Dayton concluded by saying she believes Jermaine poses a threat to the community but doesn’t think he’d flee while out on bail — despite his history of not showing up for court hearings.
“I am less concerned with whether or not he’ll appear for court,” Dayton said. “I believe that [Samaris] will make sure that he comes to court when he’s supposed to.”
Our bail system doesn’t allow for people to be held just because they present some kind of undefined risk to the community. They have to present a risk to somebody.”
Dayton lowered Jermaine’s bond to $150,000, giving him the option of posting 10%. If he makes bond, Dayton ordered Jermaine placed on electronic monitoring and restricted from leaving home for any reason other than work or medical appointments.
But that amount — $15,000 — is still vastly more than Samaris can pay.
Taubes quickly filed yet another motion, claiming the court could protect public safety without using a money bond. By setting the bond at $150,000, he said, the court used money as a means of detaining Jermaine by pricing his freedom outside his family’s financial means. Besides, Taubes argued, the judge had already imposed conditions on his release, should he post bond.
Central to Taubes’ argument is that Jermaine is not charged with a violent crime. He is not accused of firing the gun or brandishing it in a threatening manner, and there are no allegations that he poses a risk to a specific person, Taubes wrote. This makes Jermaine’s pretrial detention, “based solely on vague public safety reasons,” a violation of both federal and state constitutions, he argued.
“Our bail system doesn’t allow for people to be held just because they present some kind of undefined risk to the community,” said Christine Perra Rapillo, Connecticut’s Chief Public Defender. “They have to present a risk to somebody.”
In a legal filing dated Oct. 15, Deputy Assistant State’s Attorney Thadius Bochain opposed Taubes’ appeal of Jermaine’s bail. Referencing the “societal harm caused by the drug trade,” Bochain wrote that criminal charges involving drugs and guns “weigh heavily against pretrial release due to the inherent risk to the public created by such offenses.”
On Oct. 26, about a month after Judge Dayton lowered the bond by $100,000 in the bond modification hearing, the Supreme Court bypassed the appellate court, choosing to consider the matter itself.
Horton said he thinks the Supreme Court decided to consider the bond modification again because it has been waiting for a case involving pretrial detention and COVID-19.
“They didn’t take it to determine this one person’s situation,” Horton said. “It wouldn’t surprise me if they issue some orders concerning bail and COVID-19, in general.”
‘A bit of a ruse’
There are two main factors judges look at when considering a defendant’s bail, said Jonathan Silbert, a former Superior Court judge who retired in 2012 after 21 years on the bench. Both involve a person’s past behavior: their prior failures to show up for court, and their past records of violence.
That said, Silbert sees problems with the cash bail system — namely, it disproportionately impacts low-income defendants and people of color by making their freedom dependent on their access to money.
Bond amounts also reflect racial disparities in the state’s pretrial system, where defendants have not been convicted of a crime and are considered innocent until proven guilty. An analysis completed over the summer by the Connecticut Bail Fund with the Semilla Collective found that, as of June 7, the median pretrial bond amount for a white person was $75,500. For a Hispanic person, the median was $150,000. For a Black person, the median bail amount was $151,250.
Because people who remain in jail are more likely to be convicted of a crime and serve time in prison, the racial disparity in bond amounts bleeds into the state’s incarcerated population. On Nov. 1, about 45% of those in state correctional facilities were Black. More than a quarter were Hispanic. Whites, despite making up almost 80% of Connecticut’s overall population, made up around 27% of those behind bars.
“It is very hardly anybody who thinks money bail is a great idea,” Silbert said. “Too often, money bail is a bit of a ruse. We set a high money bond saying, ‘Here’s your opportunity to be released.’ But the implicit understanding is we know you can’t make that bond, which means you’re going to stay locked up.”
Remaining incarcerated can have a significant impact on a criminal case’s outcome, Silbert said. If they’re out on bond, defendants can improve their chances of obtaining a sentence that doesn’t result in serious, or any, prison time.
“A client who gets a job, continues to support his family, continues his job, community service, watches his drug or alcohol problem, gives his attorney something to work with when it comes to the day of reckoning,” Silbert said. “The very fact of being locked up makes them more likely to remain locked up, and to be locked up as part of the disposition.”
Silbert is working with the Sentencing Commission on its ongoing study of alternatives to Connecticut’s cash bail system. One potential option is a system in which judges, prosecutors and defense attorneys work together to determine who should be released and who should remain locked up pretrial, as they await the outcome of their case.
“I think of it as purposeful, intentional decision-making about who gets released and who gets detained,” Tsarkov said, “rather than decision-making about what kind of bond to impose.”
Such a system would allow people to be legally detained before a trial without having to use a high bond amount to price someone out of being able to finance their freedom.
A new system could be more finely tuned to protect public safety, Tsarkov said. The cash bail system doesn’t just detain the indigent. It also can free more wealthy clients who pose a danger to their community. Individuals given a high bond amount — those who, in theory, pose the greatest risk of flight and most threaten public safety — could post it, provided they have the money.
‘A living hell’
On Nov. 3, the Supreme Court rejected Jermaine’s case again. Taubes’ recent legal filings hadn’t included all the details the Supreme Court had asked for in the rationale it had published over the summer denying the emergency bond modification motion Jermaine had filed.
Taubes said he wasn’t sure he could gather accounts of what it’s like inside Bridgeport Correctional Center during the pandemic, and that he doubted he could make a comprehensive case about pretrial detention during COVID-19 in such a short timeframe.
“As a solo pro bono attorney helping someone who is in jail, I don’t have access to that information,” Taubes said. “As of right now we’re examining all options, including reconsideration, refiling, or even a lawsuit in federal court.”
In the meantime, Samaris is struggling to fill the void of a father figure in her sons’ lives. It’s been hard. One of her teenagers ran away from home. Others have shut down completely, acting out and not respecting household rules.
“Since my husband has been gone, my house has been a living hell. Everyone is haywire,” Samaris said. “They have no respect for me. Everybody thinks they can do whatever they want.”
Samaris ticked off the milestones Jermaine has missed in the past year: a high school graduation, the last season of his basketball star son’s high school career, 18th and 21st birthdays. If he stays locked up long enough, he’ll miss another son’s college graduation.
She encouraged other families to speak out against the state’s cash bail system, which has left her to support her children alone, during a pandemic, when she’s fighting to keep their home.
“Them keeping him there is ruining our family,” she said. “Why are we suffering if he’s innocent until proven guilty?”
Samaris and Jermaine had lived in their house for 10 years before they bought it from their landlord. When they were renters, it was just a place for them to rest their heads, Samaris said. “It didn’t feel like a home.”
She’s doing her best to change that. Since Jermaine has been locked up, Samaris has done work on the kitchen and the downstairs and second-floor bathrooms. She power-washed the house, planted a flower bed and cleaned the gutters for the first time in a decade.
Samaris wants Jermaine to walk through the front door and feel like he has a fresh start. That’s what she hopes all the home improvements feel like to him: a new beginning.
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