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Can Connecticut follow New Jersey to end cash bail?

Matthias Müller

New Jersey has mostly ended the practice of holding non-violent offenders on bail pre-trial. Can Connecticut do the same?

WSHU’s Ebong Udoma spoke with CT Mirror’s Kelan Lyons to discuss his article, “New Jersey mostly got rid of cash bail. Why hasn’t Connecticut?“ as part of the collaborative podcast Long Story Short.

WSHU: Why did New Jersey get rid of both cash bail? And how did they do it?

KL: They got rid of cash bail because there was a report that was released in 2013, which found that there were 1,500 people locked up in jail because they couldn't post a bail of $2,500 or less. That really lent weight to what many folks who work in the system every day already knew, which is that there are too many people locked up just because they don't have the money.

So ,there was a bipartisan joint committee that was created and they issued a unanimous recommendation that New Jersey should get rid of its money bail system and move toward a pretrial detention model, which essentially means keeping people locked up that pose a danger to society, that are a flight risk, things like that.

Not basing it off of whether or not they have the money to post bail. The politics were very interesting. At the time, Chris Christie was the governor. This was pre-Trump era. Christie was a former U.S. prosecutor and he really wanted this. He wanted to be able to say that he could detain the “bad guys”. Many people understood that individuals who have access to money can post bond no matter how much it is, if you are in a lucrative drug trade, per se, you are able to post bond much easier than somebody who was arrested for a lower level crime.

WSHU: So cash bail wasn't much of a deterrent for crime?

KL: No, I mean, cash bail isn't meant to deter crime. It's just meant to ensure someone shows up. The idea is that if somebody posts bond, they give money to the court, they have an incentive to get it back by showing up to court. However, if they use a bondsman, they're not going to get the money back anyway, because the bonds have been charged as a service in order for them to get out of jail.

It's never a deterrent. It's simply an aspect of the pretrial system that we have. So lawmakers didn't make enough progress on this. So Chris Christie actually had to call them back in to come and finish this bill. They passed the bill, they passed a constitutional amendment because they had to amend their constitution. And then in 2017, money bail was pretty much entirely ended in New Jersey. And there's an entirely new system there based on a different model.

WSHU: And how has it worked? Have there been any studies that have been done on how it has affected people in New Jersey?

KL: People are showing up to court and getting rearrested at about the same rates as money bail. There are dramatically fewer people who are held on really any money bail, but especially who are locked up because they can't afford to post bail. But notably, the racial disparities are about the same. And I was talking to somebody about this. He made a great point, he said, 'of course, we didn't fix the racial disparities, we only fixed one element of the system. With money bail, the system discriminated against people of color and poor people. Now, it only discriminates against people of color.'

It was this idea that without reforming prosecutorial misconduct, reforming policing in general, or without giving more money to all sorts of what are called front end supports that help address root causes of crime, of course, the racial disparities are going to continue to exist. So I think that that's perhaps the next stage of New Jersey's fight. However, it did what they wanted to do, meaning they have fewer people locked up for bonds they just can't afford.

WSHU: Why haven't we been able to do it? What New Jersey did, in Connecticut? I know that Senate President Martin Looney has been pushing this for many years now. Is it because of the strong character of a governor like Chris Christie that was able to get it across the goal line in New Jersey? Is that why we haven't seen a similar situation in Connecticut?

KL: I think a piece of it is that to Governor Ned Lamont criminal justice simply isn't one of his main planks. I mean, he's not Governor Malloy, they are different people. Every governor has different policy priorities. And I just don't think that money bail or criminal justice more broadly, is the highest on this list. That said, there's not as much momentum here because there are concerns over whatever we replace money bail with, we discriminate against people of color. And there's a distrust of the system by many legislators who I spoke with as well as advocates on the ground who are saying that if we get rid of money bail, the system will find a way to continue to discriminate against people of color. Another key element here is that there isn't unanimous agreement even among crucial members of the criminal justice community.

The Sentencing Commission is coming out with a report soon. This is the report that Senator Looney asked them to make on alternatives to the money bail system and the public defender and the prosecutors are in agreement that the money bail system shouldn't be done away with completely. And they have really interesting reasons for that.

I mean, they are kind of both arguing different consequences, which results in the same action. Prosecutors would say there are certain people who would be able to be released under the preventative detention model. On the other hand, public defenders are saying there are other people who would be held under the detention model. There's the concern that individuals who were accused of certain crimes like animal cruelty or domestic abuse, they would be held without an opportunity for release pre-trial. So I would say that the biggest thing is that there's just not a unanimous agreement on what the next steps are. And so another big piece of this also is that the unfortunate reality is that bail moves cases through the system.

Cash bail is an integral part of the criminal justice system because it moves cases quickly through the system, people will plead out just to go home. Is that the best ethically? Perhaps not, but it is an unfortunate reality that when you have the volume that you know, Connecticut and other states have, with people coming in the front door, bail is an effective way of keeping the system moving. If everybody was held pre-trial, the incarcerated system would look a lot different because there would be a lot more people who were held. The difference is that many people who get arrested, don't spend a ton of time actually locked up.

WSHU: You also touched on financing freedom through GoFundMe, what was that about? What did you find?

KL: So this was a guy who had a unique circumstance, he spent a lot of time in prison, his case was overturned, he was given a bond and was able to post that bond. But how he posted it is not inherently unusual. It's folks who are looking at GoFundMe as a way to raise money so that they can get out of jail.

They worked with this group called the Connecticut Bail Fund. They held a lot of community events, fish fries, all sorts of stuff, to basically raise money so that this guy could get out. You know, he had such a high bond that he needed to post through a bondsman. They couldn't raise the hundreds of thousands of dollars to get them out. So the money that they raised went to somebody as a service for this guy to come out.

As WSHU Public Radio’s award-winning senior political reporter, Ebong Udoma draws on his extensive tenure to delve deep into state politics during a major election year.
Molly is a reporter covering Fairfield County. She also produces Long Story Short, a podcast exploring public policy issues across Connecticut.