FREEDOM SHOULD BE FREE

FREEDOM SHOULD BE FREE

RI progressives clash with the courts over bail reform

As the March 3 hearing of the House Judiciary Committee approached its fifth hour, Rep. Leonela Felix (D-Pawtucket) arrived at the lectern, donning a cream blazer over a black shirt emblazoned with “End Ca$h Bail” and with a mask in her pocket that read “Freedom should be free.” She was there to present a bill that would prohibit judges from setting cash or surety bail for people arrested on misdemeanor offenses.

“I’ll be brief because it has been a very long night,” she began. “Pretrial liberties should not be a question of how much money you have in your bank account.”

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In Rhode Island, cash bail, or more precisely cash-only bail, refers to the imposed requirement that an arrested individual pay a financial sum in order to be released prior to their trial. That sum is returned when the individual appears for trial, but can be forfeited if they miss a court date or commit another crime. To fulfill cash bail, the defendant must pay the full bail amount the judge sets.

Surety bail, on the other hand, provides the defendant with three options for how to satisfy the financial requirement and attain release: posting 10% of the bail amount in cash, posting property of equal value, or using a bail bondsman (someone who intervenes to help pay the bail amount for the defendant).

A 2008 amendment to Rhode Island statute 12-13-10 prohibits cash-only bail except in cases in which the defendant owes restitution payments to the victim of a previous crime. But judges are still allowed to impose monetary conditions for release with surety, meaning defendants can still be forced to pay for their release despite having few or no options to do so.

Felix’s bill, H 7353, allows judges to impose “non-monetary conditions” for bail, including community supervision, treatment programs, schooling, and employment—but the legislation would prohibit any financial condition, according to a fact sheet Felix distributed to lawmakers.

Supporters of the bill argue monetary conditions for bail discriminate based on the financial means of the individual. “Cash bail is an inherently unjust system because it frees those with money and it incarcerates those without, who are disproportionately people of color,” said Anusha Alles of Direct Action for Rights and Equality while testifying in support of Felix’s bill.

Opponents claim that the legislation would deprive the judiciary of discretion that is used to ensure appearance at trial and protect public safety. “[The courts] are in the best position to examine the unique facts and circumstances of every case because every case is different,” Craig Berke, the director of communications for the Rhode Island Judiciary, told the College Hill Independent.

But in her testimony, Felix questioned the objectivity of judicial discretion during the setting of bail. “There is significant research that shows that the imposition of cash bail is arbitrary and…is imposed more harshly on people of color,” Felix said. A 2019 Prison Policy Initiative study, which Felix cited in her fact sheet, found that “Black and Brown defendants receive bail amounts that are twice as high as bail set for white defendants.”

“It is disingenuous to say that judges should have that discretion or that authority,” Felix said.

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Two other bills introduced last legislative session—H 7691, proposed by Rep. Anastasia Williams (D-Providence), and S 2399, introduced by Sen. Ana Quezada (D-Providence)— similarly prohibit the use of financial conditions for bail in misdemeanor cases. Williams’ and Quezada’s bills both provide exceptions for domestic violence and situations in which the court deems there is a risk the arrested individual will obstruct justice, not appear for trial, or seek to intimidate a witness.

The bills are part of a nationwide push for cash bail reform that has led 14 states to enact legislation restricting or discouraging monetary bail for minor offenses. Multiple states, including New York, New Jersey, Connecticut, and Illinois, have imposed strict prohibitions on the use of monetary conditions for bail in certain cases. This movement began in response to the long spike in pretrial detainment rates that originated with harsher bail policies in the 1970s and ’80s, Shima Baughman, a professor specializing in bail issues at the University of Utah College of Law, told the Indy. “Pretrial detention rates have gone up 433% since 1970,” said Baughman.

According to the Prison Policy Initiative, more than 400,000 people are now being detained pretrial across the country and 67% of the people held in city and county jails have not yet received their trial.

In Rhode Island, pretrial detainments have occurred frequently over the years, even for misdemeanor offenses. According to the results of an public records request filed by the Rhode Island Public Defender, 4,063 arrests in Rhode Island for misdemeanor offenses between 2015 and 2017 resulted in the defendant being detained pretrial for an inability to post cash or surety bail. The vast majority of these detainments lasted fewer than five days, before the defendant eventually managed to post bail.

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Those who testified in support of Felix's bill—Steve Brown, the executive director of the ACLU of Rhode Island; Mike DiLauro, the director for legislative initiatives for the Rhode Island Public Defender; and Alles—all highlighted the destructive effects of pretrial detainment, even when it lasts only a couple of days. DiLauro described the loss of housing and employment that detention can cause, while Alles added that incarceration can lead to the loss of child custody and damage an individual’s mental health.

Pretrial detainment also has a negative impact on defendants’ trial outcomes. Writing in the Boston University Law Review in 2018, Baughman argued that the detained have more difficulty meeting with counsel, finding witnesses, and researching laws. Additionally, those who have already been detained are more likely to plead guilty to avoid continued imprisonment. One study Baughman cited found that defendants who are detained pretrial in federal court face sentences longer by an average of 39 months. Baughman explained that judges are more likely to dismiss charges for defendants who have been released pretrial, partially because judges have a second chance to examine a defendant’s pretrial behavior and determine whether the individual is, in their eyes, a ‘productive’ member of society. This opportunity, afforded only to people released pretrial, is yet another instance where being unable to pay bail can undermine an incarcerated person’s freedom.

What’s more, Baughman said, subjecting individuals to this kind of detainment makes people more likely to commit another crime in the future. “Even a couple of days of detention [can] make a person 30-40% more likely to recidivate,” she said, as the loss of housing or employment during detention can push people to commit crimes out of economic necessity.

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Kathleen Kelly, general counsel for the Rhode Island Supreme Court, submitted written testimony that expanded on the judiciary’s opposition to Felix’s bill, claiming the legislation “usurps the constitutional authority of the courts” and would “remove the essential discretion of the Court in making bail determinations based upon facts, public safety concerns, and the prior criminal history of the accused.” Kelly wrote that the judiciary already presumptively frees defendants on personal recognizance (meaning the release of arrested individuals without any financial precondition) and that the bill would only prevent judges from making exceptions they deem necessary to protect the public and ensure appearance at trial.

But Felix questioned whether monetary conditions of bail actually make people more likely to return for trial. She cited studies of New Jersey and Washington D.C., where restrictions on the judiciary’s use of cash bail were enacted, which showed that defendants’ rate of appearance after the reforms was similar or superior to the rate before the legislation was passed.

“Flight risk is extremely low,” Baughman said. “So few defendants are actually fleeing and purposely escaping their trial date.” She added that sending text reminders or postcards, as Washington D.C. and other jurisdictions have done, has proven to be a far more effective strategy to improve attendance rate at trials.

But Berke, the judiciary spokesman, told the Indy that a financial bail amount, paid by the defendant, a family member, or a bondsman does deter people from fleeing. “Somebody is on the hook for that money and it’s money that the state would use presumably to help cover the cost of trying to find [the defendant if he or she fled],” he said, gesturing to the instrumental role bail plays as a source of revenue for the state.

In the view of other officials, monetary conditions for bail not only have an impact on trial appearance, but also on public safety. Given that Rhode Island allows for defendants to be held without bail only for capital offenses and probation violations, Rhode Island Attorney General Peter Neronha told the Indy that bail acts as a “stand-in” to ensure the detention of people whom the state deems “so dangerous that to put them back on the street regardless of the charge” would ostensibly endanger public safety.

Neronha acknowledged the socioeconomic prejudice inherent in requiring payment for release, but said he didn’t know how else to protect members of the public from the purported threat of certain released individuals. “There is a level of unfairness to that, [but] I don’t have any easy solutions,” he said.

Recent studies of other U.S. jurisdictions that enacted similar bail reforms suggest that the concerns about public safety are unfounded. Both before and after New York State enacted prohibitions on cash bail in most misdemeanor and nonviolent felony cases, fewer than 1% of the people released pretrial were rearrested for violent felonies, according to New York City’s fiscal watchdog.

And after a federal judge eliminated cash bail for misdemeanor cases in Harris County, Texas, the county experienced a 6% decrease in new prosecutions of individuals in the three years following their arrest, according to a 2022 study by the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania.

Despite this national evidence, appeals to public safety—and qualifiers like ‘dangerous’— continue to thwart bail reform efforts.

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Unlike Felix’s bill, Rep. Williams’ (who on Tuesday lost her primary to 26-year-old challenger Enrique Sanchez) and Sen. Quezada’s bills both include a specific provision to allow for the Courts to impose financial conditions for release in cases of domestic violence. Williams said she included that exception because of the difficulty domestic violence victims face in escaping their attackers. “I felt that needed to be looked at a lot closer,” she said.

In the case of domestic violence specifically, advocacy groups like Survived and Punished and Critical Resistance offer insight into how prisons can harm rather than protect survivors. For example, according to Survived and Punished, “nearly 60% of people in women’s prisons nationwide, and as many as 94% of some women’s prison populations, have a history of physical or sexual abuse before being incarcerated.” Moreover, 80% of sexual assault victims are afraid of contacting the police, and around 97.5% of perpetrators don’t face charges, according to the National Domestic Violence Hotline. Instead, many advocates argue for investments in community safety structures that support the housing, financial, and emotional needs of survivors.

“We’re not saying release that person and call it a day,” Felix said in reference to her bail legislation. She argues that other tools protect victims more effectively than financial requirements. “Let’s say you were accused of domestic violence against your partner. What is more effective: for you to give the court $10,000 or for me to put an ankle bracelet [on you] and make sure you don’t go anywhere? The reality is it is more effective to use an ankle bracelet. What does the money have to do with anything?”

Ankle bracelets carry unique concerns for advocates, though. A 2021 George Washington University Law School report argues that such electronic monitoring is “not an alternative to incarceration” but rather “an alternative form of incarceration.” These technologies “restrict movement, limit privacy, undermine family and social relationships, jeopardize financial security and result in repeated loss of freedom,” the authors write. Moreover, “unlike traditional models of probation and parole, electronic surveillance is more intensive, restrictive and dependent on private surveillance companies that are driven by profit motive.”

Despite these limitations, if a version of Felix’s bill were to eventually overcome its opposition, it would provide immediate relief for those within the criminal legal system and communities with high rates of poverty, said Hannah Stern, a policy associate at the ACLU of Rhode Island. “I think this is one of those pieces of legislation that does actually help us reframe the way we think about the criminal justice system,” she said. “Community reintegration is a critical part of ensuring that people who are justice-involved are able to go back to having an enriching life.”

All three bills were held for further study and were not voted on before the end of the legislative session in June, delaying any legislative action on bail reform until the state legislature reconvenes in January 2023. Felix said in March that she would meet with court officials, public defenders, and advocates to discuss how the bill can be improved and to create “consensus among all parties,” adding that legislative leadership is hesitant to enact laws that the Courts strongly oppose. “It’s just a lot of negotiation, and if it doesn’t happen this time around, we keep the bills alive next session,” she said.

NICHOLAS MILLER B’24 is a fan of Felix’s sartorial statements.