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2018 Will Be Pivotal Year For Bail

Posted January 3, 2018 at 12:00 AM by Michael J. Whitlock - 1 Comment

Happy New Year!  I confess, this last year, my 35th working in the bail industry, was a trial indeed.  Spending more than 75 nights away from home, it was my busiest travel season yet.  Regrettably, this time was not all spent on promoting our company, American Surety Company, but rather working with my peers in the industry to preserve a vital component of the criminal justice system that has been around for more than a century, surety bail bonds.

The warriors of social justice have been working double time to replace judicial discretion on determination of bail with an algorithm based risk assessment tool that many state legislators, state supreme courts justices and state courts have been quick to support, perhaps too quick.  In the wake of their hasty decisions, many have suffered (e.g. crime victims, law abiding citizens and yes, even those charged with committing crimes).

The opponents of accountability have proclaimed the expanded pretrial release systems currently operating in New Jersey and New Mexico to be a glowing success.  So too, the free bail systems put in place in El Paso and Houston, Texas.  In actuality, these systems have been complete failures with skyrocketing failure to appear rates of which the local power holders have been diligently trying to protect by withholding critical data from public access.

As anticipated, the risk assessment tool is getting push back from various entities across the country.  The Utah State Legislature recently took on that states Supreme Court asking for a delay in changes made to the rules of criminal procedure for which they oversee.  Those changes would have implemented the Arnold Foundation’s risk assessment tool impacting pretrial release decisions.  The court acquiesced to allow the legislature to study further the efficacy of risk assessment algorithms.

New Mexico Governor Susana Martinez has been vocal in recent months calling for the repeal and replacement of a constitutional amendment that overhauled that states bail system.

New York Governor Andrew Cumo was sent an email last November from a group of “Over 100 Community & Advocacy Groups across New York State” voicing their concerns regarding the use of risk assessments, calling the tool dangerous, ineffective and a move that would exacerbate racial disparities and cause jail over-crowding.

The New York City council passed Introduction 1696-2017, in December.  A local law that will create a task force to conduct an 18-month study of, in part, the possibility of racial bias in the various uses of computer algorithms related to age, race, creed, color, religion, national origin, etc.  The bill was sent to Mayor Bill de Blasio for his signature December 17, 2017.

Look for more states in 2018 to consider amending their constitutions to expand the language that would permit judges to preventatively detain individuals awaiting trial.

Additionally, convening state legislatures will be considering bail reform in California, Delaware, Florida, Michigan, New York, Ohio and Utah.  Federal legislation is still pending and opinions differ on whether that legislation has legs, given the current composition of the U.S Congress.  Power could shift in the 2018 mid-term elections changing the outlook on both state and federal legislative initiatives.

Look for rulings to come down in federal lawsuits involving the issue of bail now pending in the 5th and 11th Circuit Courts of Appeal.  Trial begins February 12, 2018, in Buffin v. San Francisco, a case where the California Bail Agents Association have successfully intervened.  Regardless of the outcome of these cases, at least one case is expected to be appealed to the U.S. Supreme Court.

Clearly, there are plenty of battles still before us.  With the continued efforts of the American Bail Coalition, state bail associations and many other stakeholders, those of us interested in a criminal justice system that holds criminal offenders accountable and protects society and victims of crime, can prevail.

One thing is for certain, 2018 will be a pivotal year for criminal justice reform.

Thousands of Unprocessed Rape-Kits Nationally

Posted December 1, 2017 at 12:00 AM by Michael J. Whitlock - 0 Comments

All over the news lately is talk of the tens of thousands of rape-kits around the country that have never been processed.  An alarming number of these kits documenting a violent event in someone’s life, have been stockpiling for years, and in many cases, decades.

My wife Marcia works for the Indiana Coalition to End Sexual Assault (ICESA).  Last night I attended, with Marcia and our oldest daughter Sarah, a premier of Mariska Hargitay’s (Law and Order SVU) documentary film “I Am Evidence.”  The film focuses on rape-kits and how many states have stockpiled them for years with only a few being sent for DNA testing.  In 2009, it was discovered the City of Detroit had more than 10,000 unprocessed rape-kits being stored in a dilapidated building, where the evidence was exposed to the elements.

Mariska Hargitay is the Founder & President of the Joyful Heart Foundation which began the herculean effort to rid Detroit of its rape-kit backlog by seeing the crime evidence processed and the DNA samples entered into a crime database.  The investigations that followed identified more than 800 serial rapists from the thousands of DNA samples obtained from the rape-kits.  Had the rape-kits been timely processed, many of the rapes that took place may have been prevented.

Due to the efforts of the Joyful Heart Foundation, several other states began looking at their own rape-kit backlog.  Juneau, Alaska discovered 3484 untested rape-kits, Kentucky had 3000 and Wisconsin 2400.  Overall, there are more than 200,000 untested rape-kits in the United States.

As many as 18 states have passed legislation to address these backlogs.  There are calls for more funding (both private and government) to cover the cost of processing rape-kits, more training for law enforcement and hospital personnel and a tracking system to make sure victims do not get lost in the system and forgotten.  As one panelist put it following the showing of the documentary, the only thing more personal than sexual assault is murder.

We are seeing a plethora of support for issues pertaining to criminal offenders, from billionaire philanthropists, celebrities and professional athletes aimed at helping criminal offenders.  Yet we hear very little from these same groups, save Mariska Hargitay and her Joyful Heart Foundation, of efforts to assist victims of crime.  Where have we come to as a society when the focus is more on the welfare of those who choose to do harm to others as opposed to those who are being harmed?  Isn’t it time for society to refocus its attention and priorities on those who most deserve it?

States like New Jersey are spending hundreds of millions on a statewide pre-trial release system that awards free bail to repeat criminal offenders, yet is unable to provide any detail on how many rape-kits the state has backlogged and how many of those kits have been tested.  Taxpayer money and grant funding should be spent helping victims of rape and other crimes, not making life more affordable and comfortable for those charged with committing the crimes.

According to the Joyful Heart Foundation, more than 200,000 rape-kits have gone unprocessed across the nation.  That’s an embarrassment and needs to be corrected.  Visit www.joyfulheartfoundation.org to learn more.  

No parking anytime! Unless you want to.

Posted November 21, 2017 at 12:00 AM by Michael J. Whitlock - 0 Comments

Moving towards a Softer, More Gentle Criminal Justice System

I’ve been parking in the same lot at the Indianapolis airport for several years now.  In the past year or so I began noticing people were parking in areas marked in yellow and at the end of rows where there were no marked spaces.  The first time I saw this I figured, that car will be surely be towed.  However, when I got back in town a few days later that same car was still there, untouched.  In fact, a bright orange traffic cone had been lovingly placed near the bumper by security, to protect the vehicle.  It wasn’t long before more and more people began parking in spots not meant for parking and more and more orange cones were being placed to protect these violators.  Security with a heart?

It occurred to me, these seemingly innocent yet unenforced parking violations epitomized how our country is migrating towards a level of passivity for law breakers in which we may not soon recover.  Those individuals and groups pressing to end the use of bail to guarantee appearance, seemingly have no fear of the consequences, if their efforts are successful.  If bad actors feel no threat of reprisals for bad behavior (see the entire states of New Jersey and New Mexico) they will continue to act badly.  People who have walked close, but never crossed the line, may feel safe in doing so because the agencies with the power to enforce the law are electing not to do so.

Hamilton County is situated just north of Indianapolis.  Someone charged with mutilating an animal was released on a free bond, in April 2017, through that county’s pretrial release program after receiving a risk assessment evaluation.  The defendant missed his first scheduled court appearance after to being released from jail. The bench warrant still showed active as of last week.

A quick search on Google found the defendant to have been arrested with several accomplices for attempting to rob an Ohio pharmacy, just two weeks after Hamilton County released him on a free bond.

It’s not so much that the defendant committed another crime while out on a free bond. It’s that Hamilton County was unaware of this arrest because their prosecutor’s office placed a 250-mile radius on the NCIC warrant, as opposed to a national warrant.  Apparently, people charged with mutilating animals in Hamilton County must get beyond the “care zone”, if they want to avoid prosecution.  Free bond, free head start, free from being pursued.

Trending on Twitter is an effort to do away with probation and parole.  Probation and parole are legal options, based on eligibility, for someone convicted of a crime to either avoid being sent to prison or to be released from prison early.  Both probation and parole come with conditions that if violated, may result in the defendant being ordered by the court to serve out their original prison sentence.

The solution being offered to the perceived problem of too many probationers and parolees violating the conditions of their release, is to do away with these release options all together.  So, if we do away with probation and parole that would mean more people would be required to serve out their prison terms, right?  How does that solve the “over-incarceration” problem, you ask?  Well, because the answer for the no probation and prison advocates is not that convicted offenders would serve jail time instead of probation and parole, it’s that these individuals would simply avoid serving out their sentences, without condition.  Because if there are no conditions there can be no violations.

On my recent road trip, I decided to throw caution to the wind and park at the end of a row where nobody was meant to park.  I left believing I would return from my trip and my car would be towed. I thought I would be made an example to ward off any future violators.  I was wrong. When I approached my car, I found an orange traffic cone protecting my rear flank.  How thoughtful.

Are Supporters of Criminal Welfare Winning?

Posted October 16, 2017 at 12:00 AM by Michael J. Whitlock - 0 Comments

Crime victims, increased crime, a degraded criminal justice system and unsafe communities are never discussed by supporters of reform efforts that make it easier for criminal offenders.  All focus is on a manufactured number of individuals arrested on probable cause of committing a crime, who are perceived as being held in custody pre-trial simply because they cannot afford bail.  An assertion that has been debunked each time the argument has been put forth as fact.

There have been many efforts through the years to ease the strain, stress and economic impact on those arrested for crimes.  In turn, attempting to move the burden from those individuals to those law-abiding taxpayers who have suffered from their actions.  In 2013 the Conference of Chief Justices and Conference of State Court Administrators agreed on Resolution 4, voting to pick-up the criminal welfare baton and reignite efforts to reduce accountability for criminal offenders.  The Chief Justices returned to their respective states and began convening committees to study criminal justice reforms, pushing a risk assessment tool over secured release.

These committees were/are comprised of state judges and attorneys with the exception of Indiana, that did permit a bail agent to sit on the committee, though without a vote.  We’ve seen lobbying by Justices in Connecticut, Indiana, New Mexico, New York and Utah.  Each of these states, with the exception of New York have been negatively impacted by enacted criminal welfare legislation or a change in the rules of criminal procedure addressing bail.

As documented on usbailreform.com, New Jersey Governor Chris Christie’s statewide criminal welfare legislation has had a devastating impact on public safety in that so many repeat offenders are being released back into the community unsupervised resulting in an increased rate of failures to appear and offenders committing new crimes.  It’s a mess.  Similarly, Houston, Texas has adopted a comparable release policy and seeing the same results.  More than seventy percent of those on free release have committed new crimes since the new policy was implemented.

Then there are the lawsuits filed in California, Florida, Georgia and Texas to name a few.  The common complaint, rich people post bail while poor people sit in jail.  That no one should sit in jail one second longer than someone who was able to post bail.  Cases filed in Texas and Georgia have been appealed to the Fifth Circuit and Eleventh Circuit respectively.  It’s generally accepted, one of these cases will make its way to the U.S Supreme Court.

While legislative efforts in California and Texas to implement criminal welfare legislation have been in frustrated, those efforts continue.  This is largely due to the efforts of the bail industry, some prosecutors, crime victim groups and fiscal and public safety minded legislators.

So, are supporters of criminal welfare reform winning?  They have won a few battles but the war is not yet over.  The real winners in this constitutional battle are those who have been arrested for committing crimes who have benefited wherever policies permitting their free, unsupervised release pre-trial has been instituted.  Jail has been liked to a school and the students of these schools are passing with flying colors.

A Horrific Night in Las Vegas

Posted October 4, 2017 at 12:00 AM by Michael J. Whitlock - 0 Comments

I was in Las Vegas this past Sunday to attend the annual conference of the California Bail Agents Association.  California bail agents were in attendance to receive an update on legislative efforts to eliminate commercial bail in that state and replace it with an unproven methodology known as a risk assessment tool.

It was around 10:30 P.M. Sunday evening when word began circulating about gun fire on the strip.  It was assumed the shooting occurred at one of the city’s many bars, but it wasn’t long before the media began reporting a gunman was taking sniper shots at a crowd of more than 22,000 concert goers at an outdoor venue.  We now know 59 people were murdered that evening with more than 500 injured.  It has been reported to be the worst mass shooting in U.S. history.

At the CBAA meeting the following day, the mass killing was on every attendee’s mind and in every conversation.  People were calling home or posting on Facebook to alert their family and friends they were unharmed.  The evil that is possible is difficult to comprehend.

Bail agents deal with people who run afoul of the law every day, though clearly not on the magnitude of mass murder.  One of our primary arguments against a movement that, if successful, would lessen the expectation offenders will appear for court, is a risk assessment based on an unverified computer algorithm which most often recommends release on own recognizance, reduces or eliminates accountability and the expectation of performance.

At this meeting, we heard from several speakers including Jeff Clayton, Executive Director of the American Bail Coalition, Harmeet Dhillon, attorney representing CBAA on the motion to intervene in Buffin v. San Francisco, Assemblyman Jim Cooper and Patricia Wenskunas, Founder of Crime Survivors.  All of whom spoke against the overreaching efforts to reform a bail system that has proven to be effective.  The coalition of stakeholders fighting against these reforms in California is unlike any cooperative effort in our industry’s history.  As a group, we have achieved much although this fight in California and nationally, is far from over.

Our thoughts and prayers go out to the family and friends of those killed or wounded during the deadly attack this past Sunday.  A horrific act such as the one that took place will be difficult to overcome.  As a nation, we have no choice but to continue.