Cash Bail Reform

Introduction

Justice should not depend on wealth or poverty. Too often, those charged with crimes here in Hennepin County languish in jail while they await a trial because they do not have enough money for bail.  At the same time, those with resources are released even though they may face similar, or more severe, charges. This is wrong. And for every person who stays in jail pending trial, taxpayers foot the bill - roughly $135 a day.

Bail is the amount of money criminal defendants must post to be released from custody until their trial. Bail is not supposed to be a fine, or used as punishment. The primary purpose of bail is simply to ensure that defendants will appear for scheduled pretrial hearings and trial.  Secondarily, it aids in assuring the defendant remains law abiding and follows conditions of release, because the court can forfeit bail for violations that occur before trial.

Minnesota law carries a strong presumption of pretrial release in criminal cases. It is time for Hennepin County to adhere to the spirit of that law. Under my leadership, the Hennepin County Attorney’s Office will approach bail decisions with the following priorities in mind.

I. End needless punishment of poverty.

Cash bail injects a wealth bias into the justice system and punishes the poor. Those accused of crimes who can afford whatever bail amount the judge orders, pay it in cash.  This is often called “unconditional bail” and they often get released without any conditions, and they get all their money back when their case is closed. Those who cannot afford the full amount of bail ordered might be able to pay a fee (usually 10%) to a bail bond company to get released from jail with conditions.  The bail bond company in turn keeps the full fee even if they follow all court conditions until the case is closed. Nothing is returned to the defendant at the end of the case. And they must also find a co-signer over 21. Those who simply cannot afford the bail set in the case, a bail bond fee, or do not have a co-signer, must  stay in jail until the end of their case. Too often, this results in job loss and other unnecessary hardships for those caught in the criminal justice system and their families.

Historically, Minnesota has been a leader on criminal justice reform.  But on this topic, other jurisdictions have led the way. We will build on decades of success in Washington, D.C., New Jersey, and California. Here are three steps we can take right away.

  1. Increase the “bail score” at which people are automatically released on conditions without any monetary bail.  Pending trial all defendants would be expected to remain law abiding, make future court appearances, no possession of firearms, and the court would be free to impose additional conditions, such as no-contact conditions in violent crime cases, and no-use conditions in drug cases.

  2. Remove some of the bail evaluation criteria that speak more to income than likelihood of appearing, such as “living situation” and number of address changes, age, employment and actual income.

  3. Develop and refine processes, such as pre-charge screenings, to increase the release of nonviolent defendants without payment of bail on evenings, weekends, and holidays, and encourage court systems that can make those after-hours decisions for those who are considered a low public safety risk.

II. Ensure that our bail practices actually advance public safety, rather than create more risk to the public.

Research shows that even a few days of pretrial incarceration can increase the risk that someone accused of a crime gets arrested on a new charge or misses a court date. Pretrial detention also increases the odds that people plead guilty to a crime, even when they might have a good case to prevail at trial. Conversely, there is evidence that unsecured bonds – or, release on a promise to return – achieve the same court appearance and public safety results at less taxpayer cost than bail. Knowing this, there is no excuse to delay reforms. We should act on this knowledge here.

In 2017, the Minnesota Freedom Fund audited more than 4,000 jail intake records in Hennepin County and found that bail was required in nearly 40% of cases. Currently, the Hennepin County Attorney often seeks bail in low-level drug cases only to drop the bail request when a treatment program arranges to accept the person accused of a crime. The Hennepin County Attorney also frequently requests bail in an amount that the accused cannot afford, only to agree later to plea bargains that promise to release the accused the day they plead guilty without any bail required. Cases like this serve to fill our jail, at high cost, and no public safety benefit. I will:

  1. Expand the types of charges eligible for automatic, conditional release (e.g., charges eligible for pretrial diversion should never require bail);

  2. Advocate for the use of unsecured bonds or other alternatives such as a monetary penalty for failure to appear when the primary concern is simply encouraging future court appearances, so defendants do not need to advance cash or lose money simply to be released pending trial; and

  3. Request bail only in cases where the accused poses a clear risk of flight, non-appearance, or danger to public safety.

III. Increase transparency.

Successful, costly, and avoidable lawsuits in other jurisdictions pushed reforms by proving that cash bail regimes unconstitutionally discriminated against people based on their wealth. Through careful study and release of information, we can advance necessary reforms and avoid crisis litigation here.  It is the responsibility of the Hennepin County Attorney to lookout for the county’s future liabilities, and to be a minister of justice at the same time. We must fully understand where bail requirements negatively impact public safety, and where wealth determines who ends up with a record – and who doesn’t.

On an ongoing basis, I commit to do the following:

  1. Study our bail practices, including court appearance history, and outcomes where we seek bail;

  2. Use this information to advance any additional reforms necessary to advance equity, best use of resources, and public safety; and

  3. Make as much of this information public as possible.

Conclusion

The above priorities will enhance equal access to justice, increase public safety, and ensure our office is accountable to its impact. In the end, we all must remember that it is the job of the Hennepin County Attorney to handle fairly, respectfully, and justly those people who come into contact with the criminal justice system.  It is not about winning, or statistics, or points. It is about people. I welcome your input on these plans, and any other ideas you have for the Office of the Hennepin County Attorney.



Anthony Hernandez