I am honored to be invited to join this important and timely Judges’ Journal discussion. While celebrating this opportunity and America’s rapidly increasing awareness of pretrial injustice, I begin with a note of caution.
Despite undeniable evidence that things are rapidly changing for the better, it must be said that the state of pretrial justice in America in 2018 remains that it is hard to find. Each morning in the vast majority of bail-setting courtrooms, pretrial injustice is the continuing reality for persons we have charged with a crime. In my view, any candid discussion of pretrial justice policy must begin with the frank confession of our abiding national inability to operate the front end of our criminal legal system.
The central dynamic inhibiting our effective delivery of pretrial justice is the age-old practice of monetized decision making by bail-setting judges. State court judges almost everywhere continue to rely on the secured money bond as the time-honored bail-setting tool of first recourse. As a result, our decision-making practices, often ordained by nothing more than decades of repetition, frequently make little sense. It is then unsurprising that bail-setting outcomes in courthouses across our land reliably continue to produce outcomes frequently unsafe, irrational, ineffective, and fundamentally unfair.
By deciding release and detention on the basis of wealth, rather than by informed estimates of potential pretrial success or failure, each night we lock away one-half million accused people in human cages. Most are there just because they are too poor to pay money bonds judges have ordered. We all pay $15 billion each year to support these orders. Moreover, the tragic folly of so many human beings in our jails before trial deepens when we acknowledge that they are largely all the wrong people. Our use of secured money bonds predictably facilitates the purchased release of most of the highest risk people, the very people we ought to be detaining. And we know the secured money bond is a blunt-force policy tool. Its wide net indiscriminately traps, in jail, huge numbers of low- to moderate-risk persons whom we could successfully be releasing.
It is in the context of these regrettably durable legal system realities that I briefly recount the experience of the District of Columbia Superior Court, where I have been privileged to be a judge since 1979. It is my hope that the uniquely different way we have learned to set bail might be of relevance to judges in legal systems everywhere aspiring to improve the quality of their pretrial decision making.
I entertain this hope and offer evidence of our experience for two primary reasons. First, we have proven beyond all doubt that judges do not need money bond to be highly successful in pretrial decision making. We need it not for community safety, nor for return to court. Second, we are not special or uniquely capable legal system professionals. Our experience need not be ours alone. Fundamental change in every legal system entails unique challenges. But, in the last analysis, there is no reason judges everywhere cannot accomplish what we have accomplished.
So, come with me momentarily to our decaying, half-full District of Columbia jail in southeast Washington. Were we to walk its dispiriting halls tonight, we would not encounter a single woman or man forced to live here until trial because they could not afford to post a money bond. No other jail in America enjoys this daily reality. We are the only state court system to outlaw detaining anyone with money bond before their trial.
But things were not always this way in our court system. As recently as the early 1990s, we were a prototypical bail system. Neon-lit bail bond offices lined the streets adjoining our court buildings. For cases of any seriousness, our judges turned to secured money bonds. And for cases of perceived great risk, Superior Court judges did then as so many judges do elsewhere today: They imposed a dollar amount they secretly hoped would be too high to post, thereby immobilizing the defendant until trial. Wealth-based decision making was our accepted norm in those days.
This judicial decision-making culture firmly took root despite some unusual features of our court and our law. Our court was young, created by Congress in 1970. From the first day, we had a good bail law. It called for the presumptive release of everyone in the least restrictive fashion possible. It wisely forbade any judicial attempt to ensure community safety with money bonds. And as we opened our doors, we had in place the nation’s first comprehensive preventive detention statute.
However, our preventive detention statute was essentially a dead letter, almost never used because prosecutors opted instead to seek high money bonds. And judges, when challenged for granting those requests and impermissibly using money for safety, frequently articulated dubious constructs equating seriousness of potential penalty with posits about risk of flight. The fact then and now, however, is that there is no empirical support for equating seriousness of charge with risk of nonappearance. So, as we entered our third decade as a big city court, it was bail-setting in the traditional American style for the nation’s capital. Were you an accused person, we decided your liberty and our safety based on the irrelevant accident of your resources, not the risk your release might pose.
Like so many places today, our court operated often as a kind of freedom mart, offering release deals for cash purchase. And like so many places today, our judges set bail in judicially sanctioned partnership with bail bondsmen. We did so though we knew our enabled partners brought no passion for justice to this strange decision-making union, merely a passion for profit. As judges still do today, with eyes wide open, we watched as they sought to exact a nonrefundable tariff from desperate families to effectuate our theoretic release orders.
Then everything changed. I wish that our history revealed that wise judicial minds perceived the injustice of our ways and set about to reform our policies and practices, but the reality is we were forced to change.
It was the vision of former D.C. Pretrial Services Agency Director Jay Carver that led the chain of events compelling reform. Carver, long an ardent foe of the unfair, ineffective, and unsafe character of secured money bonds, was very concerned that judicial decision-making practices had strayed badly from their statutory moorings. He was troubled, for example, that our law’s safety-related procedures enabling temporary holds for arrested persons already on probation or parole, or released in a pending case, were being ignored in favor of just setting money bonds. He was concerned that unprincipled use of secured money bonds had rendered functionally irrelevant our transparent and due process–appropriate preventive detention law.
So, in 1992, Carver recruited policy-change allies, our chief public defender and chief prosecutor—each with his own reasons for joining hands—to go to the D.C. City Council. In the wake of a series of highly publicized drive-by shootings, it was a time of growing discontent with the safety-related consequences of money-driven judicial release decisions.
He quietly engineered some minor but significant legislative changes in our bail law. The addition of one sentence in particular, borrowed from the U.S. Code, ultimately transformed forever our bail-setting practices. That sentence provided then and now that a judge could impose “. . . a financial condition to reasonably ensure the defendant’s presence at all court proceedings that does not result in the preventive detention of the person. . . .”1
Standing Eighth Amendment “excessiveness” caselaw on its head, in the District of Columbia that sentence has always been interpreted to mean what it says, namely, that an accused person has a right to money bond he can meet. As Eric Washington, former Chief Judge of the District of Columbia Court of Appeals, has written: “The addition of this language was critical because it reaffirmed the purpose of bail as a mechanism to release persons rather than hold them. It commanded that no bail be set that a defendant could not pay.”2
In our courthouse, it has always been the case that the overwhelming majority of criminally accused persons come to us facing great economic challenges. Most easily meet our indigency standards. Judges setting secured money bonds in service of time-honored, unproven constructs like giving the defendant supposed “skin in the game” never set nominal bond amounts. We soon realized that any secured money bond our judges might set, believing it high enough to be effective, proved most often to be beyond the accused person’s reach. Such bonds were now impermissible under our amended bail law. Given the way we used secured money bonds, we soon realized that in a poor person’s criminal courthouse, if money could not ever operate to detain, it had lost its supposed efficacy. We had to find new ways to set bail.
For accused persons viewed as presenting a very strong likelihood of pretrial failure—persons who would have nontransparently been given prohibitively high secured money bonds—prosecutors and the court turned to our largely dormant preventive detention statute. For all the other people who previously would have received habitually set secured bonds—some posting the bonds, some not—we fashioned nonmonetary conditions of release. We then turned to our excellent pretrial services agency to help us supervise those needing supervision.
It did not happen overnight, but our ship turned in the water. Judicial decision-making culture in Washington, D.C., did something uncharacteristic: It completely changed. We saw that the sky did not fall as we turned from monetized decision making. As we now released more and more persons nonfinancially, we saw that they returned to court and were not rearrested. With clearer eyes, we now saw that perhaps we had been using secured money all these years needlessly.
Many judges in our court today were appointed in the last 20 years and have never used money bonds. For those of us serving in the money bond days, nobody has looked back. There are nearly 100 judges eligible to robe up and play various judicial roles in our court. To say we exhibit rich diversity of thought regarding most of life’s questions would be an understatement. There may be but one thing upon which we all agree. No Superior Court judge would ever dream of going back to the irrationally dysfunctional days of deciding pretrial liberty with money. There are no outlier jurists. We approach our bail-setting work with one mind and one shared conviction: We do not need money!
Our operational architecture is an in or out system of pretrial release and detention. A small percentage of persons are in, that is, preventively detained. Everyone else is out, released until trial. There are no release orders of uncertain effect: out if you have the money, in if you don’t.
Using a risk assessment tool brokered by our pretrial services agency and all additional information that can be gathered, we make an effort to estimate the likelihood of pretrial success if released. As judges being asked to release prior to trial, we are statutorily entitled to a “reasonable assurance” of safety and return to court, but, critically, nothing more. Because accused persons before us are presumed innocent, we may not seek guarantees of success. Our “reasonable assurance” standard honors acceptance of the notion that a measure of risk always inheres in pretrial decision making. As Justice Jackson wrote in concurrence in Stack v. Boyle: “Admission to bail always involves a risk that the accused will take flight. That is a calculated risk which the law takes as the price of our system of justice.”3
If, however, after focused and transparent inquiry at a hearing, we conclude your risk of rearrest or nonappearance is beyond our apparent capacity to mitigate, and we are thus unable to obtain a reasonable assurance of safety and return, we order your bondless detention. Your wealth or poverty is utterly irrelevant to the process.
The main procedural steps in our bail-setting procedures can be briefly summarized. In our first appearance court, where arrested persons appear within 24 hours of arrest (unless arrested late on Saturday), the prosecutor has reviewed the case and made a charging decision. If prosecution is declined, you are released without ever appearing in the courtroom.
The pretrial services agency has prepared a detailed written report that is given to the court and all parties. This report reflects the person’s risk of rearrest and risk of nonappearance. The report includes suggested conditions of release, if appropriate, to mitigate identified risks.
If charged, you appear with counsel who has certified that he has previously spoken with you to prepare. No prosecutor asks for a money bond. No judge imposes one. You are either the subject of a temporary bondless hold, of either three or five days’ duration, or you are immediately released, with or without conditions of release, and walk out the public courtroom doorway.
If temporarily held, you next appear for a detention hearing. At that hearing, all the process approved as due by the Supreme Court in United States v. Salerno4 is yours. If held at the conclusion of your detention hearing, rich or poor, you are detained with no bond pending trial on an expedited trial schedule. Both defense and prosecution enjoy expedited appellate rights regarding the detention order. Most trial court detention orders require written findings and conclusions.
Of critical import, we have managed to keep preventive detention limited. Although we detain a much higher percentage of persons charged with statutorily defined “crimes of violence,” which are less than 10 percent of our cases, we last year preventively detained only 6 percent of all the persons we arrested and charged.
Everyone else, 94 percent, we released without using money bonds at all. Of these, 25 percent were released with no supervision or conditions other than their promise to return to court and obey the law. The remainder of released persons had varying conditions of release, determined in a statutorily mandated least-restrictive fashion.
So, you might ask, has this radical departure from normative bail setting in America actually been successful? How has estimating risk rather than using randomly selected money bond amounts worked out over time? Happily, the answer is, quite well indeed!
As an example, for the last four years we released an average of 93 percent of arrested and charged persons. In that time period, an average of more than 88 percent were not rearrested and more than 88 percent made every court appearance.
Most recently, in 2017, 94 percent of all arrestees were released; 88 percent made every court appearance; and 86 percent were not rearrested. Of the few rearrested persons we had released, less than 2 percent were charged with rearrest crimes of violence.
I submit that the District of Columbia courts have demonstrated, over time, that a large, rough-and-tumble criminal court system can produce successful outcomes—outcomes at once rational, law-based, safe, effective, and fair, all without using money bonds at all. We are living empirical proof that bail-setting judges in America do not need money bonds for community safety or return to court.
While it is my posit that America has yet a long road to travel before pretrial justice becomes a reality in our bail-setting courtrooms, signs of inexorable positive change are everywhere in 2018. Each passing day brings fresh evidence of a burgeoning national awareness of the costly, ineffective, and unfair character of current monetized judicial pretrial decision making.
To the surprise of some, judges in many places, both trial and appellate, often can be found leading efforts to rethink and reform how we decide pretrial liberty—surprise because judges are generally unaccustomed to the role of change agent. In my view at least, good judges did not seek judicial office to change the world. A good judge at once appreciates the enormity of her powers and the necessary limits of her office. Our personal convictions about what we wish the law provided must never trump what the law actually provides. Perceived and actual impartiality of the judiciary matters very much to all good judges.
But impartiality is not neutrality regarding issues of justice policy. How can a judge be neutral while turning a blind eye to abiding injustice in her courthouse decision-making policies and practices?
So, as I travel the country talking with judges about pretrial injustice, I find growing impatience and concern. Judges called upon to set bail want tools to do their jobs in a law-based, transparent, and effective way. They want to do their jobs in continuing fidelity to their publicly sworn oaths to do justice without regard to persons, to the rich and poor alike, always faithful to the Constitution and the rule of law. So it is that judges in ever-increasing numbers are lending their hearts, minds, and voices to the efforts to rationalize and render more law-based, bail-setting practices in our courtrooms.
However, with the quickening pace of pretrial reform, we urgently face many critical, fresh challenges. Legal systems everywhere, awakening to the need to change, are asking: “Change to what precisely?” We must fashion wise and durably effective answers. Change is not intrinsically of value. It is not necessarily reform. If not vigilant and thoughtful, we face the real danger we may substitute new but equally flawed justice policies and practices for the flawed policies and practices of the past.
One thing is for sure: Judges must eliminate reliance on secured money bond once and forever. Money bond cannot be dressed up and made viable. Secured money bond has always been, and always will be, the enduring enemy of pretrial justice reform.
But we cannot eliminate money bonds without giving judges a transparent and lawful way to detain the small percentage of accused persons we cannot safely release. This means according trial judges carefully limited preventive detention powers to use in rare circumstances. But there are real risks of even greater injustice if we do not effectively cabin the preventive detention powers we now begin to enable judges to use.
Bail-setting practices in the U.S. district courts serve as a dramatic present reminder of the dangers of the overuse of preventive detention. Indefensibly, in my judgment, federal courts for years now, as a national average, have preventively detained more than half of all arrested federal defendants! Substituting mass incarceration by bondless detention for money bond’s mass incarceration is not reform. Indeed, it might well constitute a step backward.
And we face significant additional dangers as we move from monetized decision making. As an example, judges are by nature a “better safe than sorry” lot. We seldom just offer suggestions to solve problems before us. We issue orders intended to solve problems and accomplish our goals. There is a great danger that judges moving from reliance on money will reflexively embrace the piling on of conditions of release to hedge our bets. In so doing, we risk creating whole new realms of unwarranted pretrial infringement of liberty.
Regrettably, we have grown to accept as our national social reality that half of arrested persons are to live in jail before their trials—in state courts because of money, in federal courts due to overuse of preventive detention. This is a deeply flawed accepted reality. We must take the greatest of care to avoid ever growing comfortable with overly conditioning persons whom we are now appropriately releasing pretrial.
There are other challenges of immense significance as American courts finally come to terms with the urgent need to fundamentally reform pretrial decision making.
But, first and foremost, bail-setting judges must accept that their use of secured money bonds causes immense, indisputable harm and nets us absolutely nothing of value in return.
Harm is caused to the lives that are damaged or destroyed by being made to suddenly endure radically destabilized lives in a jail cell until their trial, deprived of nearly everything that gives life meaning. And harm impacts the integrity of function of our criminal legal system because we now know that persons needlessly incarcerated prior to trial have a radically disparate path through our supposedly impartial system. Furthermore, harm is demonstrably real for each of us and our communities. Research now reveals, in addition to needless fiscal costs, we all pay the stark public safety price of the increased recidivism likelihood for low- to moderate-risk persons detained pretrial for even a few days.
The good news for judges everywhere is that secured money bond’s harm can be forever avoided. That is not a hypothesis in need of research confirmation. It is a proven fact. The experience of judges in the District of Columbia courts has shown over time and beyond doubt that no bail-setting judge needs secured money bond to be successful. Why on earth, given what we know of the bonds’ destructive character, would judges continue to use secured money bonds if they did not need to do so?
In 2018, we largely know what works and what does not in deciding pretrial release and detention. Yet, too many judges and other legal system professionals continue down paths we know in advance will lead to unjust and ineffective outcomes. I believe these next few years will determine the character of pretrial justice our children and their children can expect. We will either make wise and bold decisions or we won’t. Judges are naturally called to be a vital part of this critical time of reassessment and reform. I have faith we can rise to the occasion and do our part to finally make justice before trial a reality in American courtrooms, not just an aspirational slogan. n
1. D.C. Code § 23-1321(c)(3).
2. Eric T. Washington, Brennan Lecture: State Courts and the Promise of Pretrial Justice in Criminal Cases, 91 N.Y.U. L. Rev. 1087, 1096 (2016).
3. 342 U.S. 1, 8 (1951) (Jackson, J., concurring).
4. 481 U.S. 739 (1987).