During the Criminal Justice Commission’s meeting on May 12 to interview candidates for Connecticut’s next Chief State’s Attorney, Justice Andrew J. McDonald asked New Haven’s State’s Attorney Patrick Griffin, “Are you aware that 40% of our prison population are people who have not been convicted of any crime, they’re pretrial detention?”

Griffin responded that the challenges of COVID-19 had impacted the ability of the courts to process cases since many courthouses were closed during the pandemic. COVID-19, however, does not address the actual reason that most people are being incarcerated without being convicted, long before the pandemic began: they do not have the resources to afford their freedom.

Connecticut has a reputation as an expensive state to live in. Expensive homes, expensive property taxes, expensive gasoline, expensive groceries, expensive healthcare — and allows freedom for people with the means and resources to pay for it, but incarceration for those who can’t. Basing an innocent person’s freedom (because every person is considered innocent until proven guilty) on that person’s ability to afford bail is fundamentally wrong and unfair. Connecticut should stop using money as a way to incarcerate people who have less of it.

At the May 12 hearing, Justice McDonald referenced two recent cases, one in Stamford where a 15-year-old teenager accused of sexual assault was being held on a $150k bond, and one in Litchfield where a 75-year-old man charged with manslaughter was given a bond of $50k, which he posted and was released. “For the life of me, I can’t understand the disparities that exist in bond determinations, both as recommended by prosecutors and sometimes as modified or imposed by judges,” Justice McDonald said. “And I think that frankly it feeds into a lot of the mistrust of the criminal justice system among members of the public.”

Hartford State’s Attorney Sharmese Walcott agreed during her interview before the Commission on May 12. “You can have the same person present for arraignment on a case in G.A. 12 and receive one bond, and present at G.A. 23 and receive another, and G.A. 1 receive something different,” Attorney Walcott said. That is an alarming inconsistency for the 23 “geographic areas courts” across Connecticut where justice is being determined by wealth and by zip code.

Gus Marks-Hamilton

According to the Department of Corrections, as of July 1, there were 9,936 people in custody. 40.5% of those people were not sentenced. In real numbers, that is 4,023 people incarcerated without being convicted.

A decade ago, in July 2012, there were 16,673 people in DOC custody, and 4,080 had been accused but not convicted. Stated another way, there are nearly 7,000 fewer people incarcerated now than a decade ago, a 40% reduction, yet the number of people held in pretrial confinement has not changed.

Our criminal legal system is failing when the number of people who are incarcerated but not convicted is approaching the same number of people who are.

The Criminal Justice Policy and Planning Division’s Monthly Indicators Report stated that on June 1, there were 424 people incarcerated with bonds less than $20k. Beginning in January 2020, people with bonds under $20k have an automatic 10-percent option, meaning that just 10% of the bond could be paid to the court to release a person from custody, with the money being returned at the end of the person’s case. For example, a person with $15k bond could pay $1,500 to the court and receive it back once their case was disposed.

Another 440 people had bonds between $20k and $50k, 544 people with bonds between $50k and $100k, and 2,374 people were detained with bonds higher than $100k. Of course, people in pretrial detention could also turn to a bail bondsman, but even that option is out of reach for people who may prefer to spend their resources on a lawyer to defend them in court (and if a person is assigned a public defender, they likely could not afford bail in any case).

Earlier this year, on May 10, a man from Ellington was found guilty of murder by a jury. The man had originally been arrested and charged in April of 2017, but had been able to post a $1 million bond and spent the past five years free of custody. I remembered that case because a month earlier, in March 2017, a teenager in Hartford was arrested for murder and also given a $1 million bond. The 17-year-old, who claimed a gun had accidentally fired, could not afford that bond, was incarcerated, and took a plea deal one year later. Two people arrested for the same charge and given the same bail, but with strikingly different processes.

More recently, on May 23 this year, a 17-year-old from Shelton charged with murder was released on a $2 million bond, yet there are more than 400 people in custody right now who could be free if they paid – at most – $2,000 to the court.

Justice McDonald continued to question how bail was used during the CJC’s June 20 meeting when interviewing candidates to be the new state’s attorney in the New Britain and New Haven.

“Do you believe there is a problem in our criminal justice system with disparate treatment of defendants in the determination of bails amounts?” Justice McDonald asked attorney David Applegate.

“I do,” Applegate responded. “We use an algorithm and the variables correlate with race… You’re talking about employment status, home ownership, whether the person is married. And those three things that would lead to a PTA [promise-to-appear]. “So you have an abusive white male in his 50s who beats his wife, gets credit for being married and for owning a house, and he’s well on his way to a promise-to-appear, as opposed to a young black male who gets caught interfering with police who all those factors work against him.”

The people of Connecticut cannot have trust or have faith in this kind of disparate criminal legal system, particularly for communities of color. Black and brown people have long been disproportionately represented in the Connecticut’s prisons and jails, making up approximately 70% of the population when they only make up about a third of the state’s overall population. But the disparity is even higher when it comes to the pretrial population where 73% are Black and Hispanic people, and that has grown from 65% five years ago.

Connecticut must build a different system that does not incarcerate people based on their inability to afford their freedom. States like New Jersey and New Mexico and the District of Columbia have moved away from using bail and replaced them with systems that are more equitable and don’t connect a person’s wealth to whether they can afford their freedom. Connecticut should begin to do the same.

Gus Marks-Hamilton is a member of the Connecticut Mirror’s Community Editorial Board.