This story has been updated.
If Adam Lanza lived, he would have been entitled to bail.
That’s because the Connecticut Constitution says that courts can deny bail only to people accused of committing capital offenses, a charge that was repealed after the death penalty was abolished more than a decade ago. The remaining exception arises when someone already accused of a serious crime violates their pretrial release conditions.
In other words, Lanza, the Sandy Hook Elementary School shooter who died by suicide, could have walked free if he had the money to bail out. So could have Nicholas Brutcher, who was accused of killing two Bristol police officers last year before he was fatally shot.
Meanwhile, people who can’t afford to post bail languish behind bars until their cases get resolved, the effects of which are present in the cases of people like Brandyn Grant-Ford, a Black man who faced a murder charge, $500,000 bail and spent four years in jail until a jury found him not guilty.
But Connecticut’s bail infrastructure, where financial means largely determine who stays locked up, could go through major changes as lawmakers are considering House Joint Resolution 261, a proposal to amend the Constitution and allow the state to establish a risk-based pretrial system, as well as give the legislature authority to set additional terms around pretrial release. The resolution passed out of the legislature’s Judiciary Committee last month and was referred to the Government Administration and Elections Committee, where it was also approved.
“This is a really, really big deal,” said Alex Tsarkov, executive director the Connecticut Sentencing Commission, an independent agency conducting criminal justice policy research. “It’s the first time to my knowledge that an amendment to the Constitution on bail has been proposed. Not only proposed but was voted out of the committee.”
The proposal would allow courts to deny bail if they find that no pretrial release conditions would reasonably assure the person accused of a crime would appear before a judge when required, protect the safety of others or prevent that person from interfering with the criminal justice process.
That change could take several years.
After going through the appropriate committees, constitutional amendments must pass through the House and Senate with three-fourths majority support in one legislative term, or a simple majority in two successive legislative terms. Amendments then have to garner majority support among voters. In this instance, that could happen as soon as the 2024 general election or as late as the 2026 midterm election.
If enough state residents vote in support of the amendment, it would become part of the Constitution and give lawmakers the green light to debate and settle upon additional changes to bail. But if it failed at the hands of voters, the entire process would start over.
And while the resolution makes clear that it would allow courts to deny bail and grant the legislature power to set additional terms, it’s too early to know how lawmakers would change the system, given the differing perspectives among stakeholders about what it should look like.
“It certainly is a national conversation that’s happening pretty much in every jurisdiction across the country, and we’re actually very late to this debate,” Tsarkov said. “This is a system that’s hard for some people to imagine anything else different. I think that’s a problem that some people just have not seen a different system in action. But also I would say that this is not an easy undertaking, and so that’s part of the reason why progress has been very slow.”
Bail systems in states like New Jersey, which after years of debate mostly got rid of money bail after amending its constitution to establish a risk-based pretrial system, provide some idea of what direction lawmakers could travel. In New Jersey, judges assess whether a person gets released on their own recognizance and under what conditions. Since the change, the state’s pretrial jail population has decreased along with overall crime and violent crime.
But while a risk-based pretrial system might have kept Lanza and Brutcher behind bars if they had lived, people like Grant-Ford exist, who was found not guilty after spending years locked up.
It’s difficult for someone to collect evidence to fully demonstrate their innocence if they’re incarcerated and not given the opportunity to post bail, said Jewu Richardson, co-director of the Connecticut Bail Fund, a nonprofit helping people who lack the funds to secure their release, many of whom are people of color. There are also wrongful convictions, many of which have been documented in Connecticut.
“If you’re denying bail, then you’re saying that this person’s most likely guilty of the crime they committed,” said Richardson, who was formerly incarcerated. “So we’re denying them bail when the reality is a person is innocent until proven guilty, and wrongful convictions are a reality. The criminal justice system is flawed.”
Further, eliminating a wealth-based bail system alone wouldn’t address problems in other aspects of the criminal legal system, Tsarkov said, like policing, prosecution and sentencing.
But some lawmakers on the Judiciary Committee see a constitutional amendment to bail as a pivotal starting point to addressing two overarching problems: The inability to detain people accused of committing violent crimes, and the ability to keep poor and low-income people locked up pretrial who aren’t dangerous but can’t afford to bail out.
“As much as I would like to see us keep less people in jail pretrial for lower level crimes and would like to increase the ability to hold folks for more severe crimes, we can’t strike that legislative balance right now with the Constitution the way it is,” said Rep. Steven Stafstrom, D-Bridgeport, co-chair of the committee and author of the resolution.
Stafstrom said he doesn’t currently have legislation prepared that outlines what additional changes he hopes to make after amending the Constitution, but he does “think we need to have a really robust conversation on that.”
He also said widespread misconceptions and fear mongering, like in New Jersey, New York and Illinois, about bail and crime are the biggest obstacles to getting the resolution fully passed.
But getting the resolution through the Judiciary Committee was no small achievement.
At a meeting last month, Rep. Craig Fishbein, R-Wallingford and the top House Republican on the committee, publicly endorsed Stafstrom’s assessment of bail in Connecticut, which included the Lanza scenario, and said he was in support of making changes. Rep. Doug Dubitsky, R-Chaplin, joined Fishbein and the Democratic majority in voting to advance the proposal.
Fishbein, who did not respond to requests for comment, also acknowledged the hesitancy among his colleagues, like that of Sen. John Kissel, R-Enfield, about whether a constitutional amendment would lead to unforeseen changes.
“To me, it’s a little bit like signing a blank check and saying, ‘OK, don’t spend too much.’ And I don’t know what the net result is going to be,” Kissel, the committee’s top Senate Republican, said before voting against the resolution. “I’d love it if I knew the intentions of Rep. Fishbein and chairman Stafstrom were the ones that would be effectuated. But this is sort of a multi-year process, and, fundamentally, I just have cold feet at this time.”
Any changes would also have to weather opposition from the bail bonds industry, which cashes in as much as $2 billion a year and continues to face sharp criticism across the country for some of its practices, which keep the poorest people imprisoned.
In Connecticut, people accused of a crime can post bail by paying the full amount or paying 10% of the amount if the total is $20,000 or less, and both choices provide them a refund as long as they meet the court’s requirements.
There’s also a third option: paying a bail bonds agency, which loans them the money for a nonrefundable fee. Agencies typically allow people to enter a payment plan if they don’t have the money upfront.
Andrew Marocchini, the owner of BailCo Bail Bonds, said he doesn’t see a problem with the bail system. He said lawmakers shouldn’t have eliminated the death penalty, which subsequently repealed capital offenses, the one tool they had to keep people accused of the most serious crimes detained.
He also thinks bail reform in recent years, such as limiting when courts can impose financial conditions of release for people charged only with a misdemeanor, was ineffective, considering the number of people still behind bars pretrial. That number in 2022 was more than 3,500, the highest since 2013, according to data collected by the Office of Policy and Management, partly a result of the COVID-19 pandemic.
“They made those changes in an effort to help those individuals, yet the pretrial population still has not decreased, which shows that those changes are not effective,” Marocchini said. “The premise that eliminating bail and creating preventive detention will work in lieu of the changes that they’ve already made, those will not be effective either.”
But lawmakers haven’t proposed eliminating money bail, which they could accomplish without amending the Constitution.
And the reform measures Marocchini alluded to were not wholesale changes but rather incremental steps to have fewer people locked up for minor crimes, according to Michael Lawlor, former chair of the Judiciary Committee and undersecretary for criminal justice policy and planning under Democratic Gov. Dannel P. Malloy.
Lawlor, an advocate for New Jersey’s bail system, said Connecticut needs the current bail resolution to take another step forward. He said it’s possible for lawmakers to find middle ground and not go as far as throwing out money bail.
“You could say, ‘OK, let’s give judges the option of holding people pretrial without bail.’ And let’s also say that if that passes in a constitutional referendum, then here’s the new system for deciding who sits in jail pretrial and who doesn’t,” Lawlor, also a former prosecutor, said. “I think the end result will be similar to New Jersey, which is just a lot fewer people locked up pretrial. But the dangerous ones are locked up, which I think is the goal.”
Amending the state Constitution isn’t a goal shared by current prosecutors and public defenders, however.
In written testimony to lawmakers, the Division of Criminal Justice, led by Chief State’s Attorney Patrick Griffin, who wasn’t available to comment, opposed the resolution and said it marks a “radical departure” from the current system.
“While such a departure may find favor and be beneficial, doing so now, without careful study and consideration of the various stakeholders, is premature and lacking in any reasonably informed and thoughtful consensus on the risk-based system that would replace the current bail system,” the testimony says.
“Any new risk-based system requiring a release determination and possible hearing in 85,000 criminal cases annually will require significant and fundamental changes in the Judicial Branch, DCJ, law enforcement, victims’ advocates, and the Office of the Public Defender,” it says.
TaShun Bowden-Lewis, Connecticut’s chief public defender, said taking steps to amend the bail provision in the Constitution, without having thorough discussions with the stakeholders beforehand, could prove devastating for people of color, who disproportionately comprise more than 70% of incarcerated people in the state, and other underserved communities.
She said there’s currently no uniformity with judges and sentencing. If there was confidence that the system would treat everyone equally, then “that might be a different discussion,” she said. But she said there’s too much left to chance.
“Things that are in theory are one thing, and practice is something totally different,” Bowden-Lewis said. “Denying a person the right to have bail is a problem, especially for our clients. If a person is not able to make bail and is not given an opportunity to make bail, just straight up denied, what’s going to happen to their family? What’s going to happen to their jobs? What’s going to happen to their house? Those are our major concerns.”
Stafstrom said he fully recognizes that by proposing the constitutional amendment, there’s a need for thorough discussions. The Connecticut Sentencing Commission echoed that belief in a report released last year, saying “reform must enjoy broad support from all the principal actors in the system.”
Justice-impacted people hope that includes them.
“This is affecting people on a regular basis, so I’m having conversations with people about it right now,” said Richardson of the Connecticut Bail Fund. “It’s going to be some pushback as far as what the community wants, what people that are directly impacted want to see it look like, or people that have been impacted. I see it coming.”