(Related to Article 1—“California Becomes First State to End Cash Bail after 40-Year Fight”): The Issue of Bail Reform

For articles offering competing viewpoints on the issue of cash bail and the need for bail reform, please see the following:

“As Bail Reform Progresses, Yes, Bail Is Constitutional”

https://fedsoc.org/commentary/blog-posts/as-bail-reform-progresses-yes-bail-is-constitutional

If you read the text of the Eighth Amendment excessive bail clause, you may be surprised to hear bail reform advocates ask, “Is Bail Unconstitutional?”

The answer is no.

But the question arises as debates over bail reform rage from Maryland and New Jersey to Texas and California, asking a more fundamental question of how to balance individual liberty with state power to secure public safety and justice. Proponents of reform who question the constitutionality of money bail, including former Attorney General Eric Holder, argue that setting bail at an amount higher than an individual can afford to pay violates the Fourteenth Amendment to the U.S. Constitution. Those defending the constitutionality of money bail, including conservative lawyers Paul Clement and Chuck Cooper, point to the Eighth Amendment, arguing that money bail is constitutional even when an individual cannot afford to pay bail, so long as the amount is reasonably calculated to assure his appearance at trial.

Reform advocates make compelling policy arguments for changes to discrete bail practices, and indeed state legislatures may wish to act on them. But claims that money bail is unconstitutional are incorrect and risk misinforming policy changes that may bring with them unintended and potentially severe consequences.

Four recent events illustrate the build-up in today’s bail debate.

In February 2015, the U.S. Department of Justice’s Civil Rights Division filed a statement of interest in a class action lawsuit in federal district court arguing that “any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.” (Varden v. City of Clanton, No. 2:15-cv-34-MHT-WC (M.D. Ala., Feb. 13, 2015).)

In December 2015, the Obama White House Council of Economic Advisers wrote an issue brief that expounded on the administration’s public policy concerns with state and local bail practices. The brief made two particularly compelling policy arguments. First, that “bail practices can result in detaining the poorest rather than the most dangerous defendants before trial.” Second, individuals detained before trial who cannot afford bail may undergo significant hardships, such as potential loss of employment, limited access to defense counsel, and a reduced opportunity to prepare a defense.

The cost of housing individuals who cannot afford to post bail in jails is also a driving factor of the bail reform movement. According to county officials in Cook County, Illinois, for example, out of approximately 7,500 individuals in jail, at least 1,100 are held on bail of $5,000 or less; and 300 on $1,000 or less; while the county pays at least $150.00 per day per person in pre-trial housing costs. Cook County Sheriff Tom Dart, has expressed his openness to replacing cash bail with more extensive background checks, preventive detention for individuals who pose a risk of flight or danger, and additional pretrial services for defendants who secure release before trial.
In 2016, the Civil Rights Division’s Office for Access to Justice wrote a “Dear Colleague Letter” to state judicial officers that recommended specific actions based on prior legal and policy opinions. Citing its 2015 statement of interest in Varden v. City of Clanton, the letter repeated the argument that “any bail practices that result in incarceration based on poverty violate the Fourteenth Amendment,” and urged recipients to “consider transitioning from a system based on secured monetary bail alone to one grounded in objective risk assessments by pretrial experts.”
Finally in October 2016, in a memorandum to Maryland Attorney General Bryan E. Frosh entitled “Maryland’s Wealth-Based Pretrial Detention Scheme,” former Attorney General Eric Holder offered additional policy arguments in favor of reforming bail practices—chiefly, that indigent defendants who are unable to pay even modest bail amounts may enter into plea bargains simply to end their pre-trail detention. But the memo further claims that “Courts across the country have invoked” U.S. Supreme Court precedent “to find that wealth-based pre-trial detention schemes are unconstitutional.”

In a Heritage publication, “The History of Cash Bail,” Heritage Policy Analyst Jason Snead and I review the history of the Eighth Amendment bail clause in light of those arguments. We find that the text of the Constitution, U.S. Supreme Court precedent, and legal history all indicate that a money bail scheme is not unconstitutionally excessive solely because it is “wealth-based” in general or if money bail is unaffordable in some instances. Rather, the concern when setting bail is whether the amount imposed is reasonably calculated to ensure the defendant’s appearance at trial. Neither the due process nor equal protection clause fundamentally changes that analysis whenever a defendant held in pre-trial detention cannot afford bail.

Unlike incarceration after a criminal conviction, pre-trial detention is not for the purpose of punishment. Obama Justice Department officials overlooked that crucial and longstanding distinction in framing their constitutional arguments against money bail, and read too broadly a line of Supreme Court cases that apply the Fourteenth amendment in a post-conviction context. While due process provides the appropriate analysis when some aspect of an individual’s pre-trial detention is punitive, it does not supply a backstop whenever pre-trial detention is prolonged because the detainee is unable to post bail. Likewise, the rational basis review that equal protection analysis requires in alleged wealth discrimination cases does not avail advocates who seek to erase bail from its place in the Eighth Amendment.

At the heart of the bail controversy is the fact that judicial officers have enormous discretion to calculate and impose bail. That discretion may be restrained somewhat in jurisdictions that use bail schedules to assign predetermined sums based on offense categories, subject to judicial review. Nevertheless, reform advocates argue that judges often set bail too high, particularly as a substitute for requiring pre-trial detention when they perceive a defendant to be potentially dangerous or unlikely to appear for trial.

States have a variety of policy options at their disposal to address those concerns. Some states have abolished commercial bail. Nebraska has successfully experimented with automated court date reminders to reduce failure to appear rates. And several jurisdictions have adopted risk-assessment tools to determine what type of restraint to impose on an individual pending trial, ranging from detention to release on recognizance. New Jersey, for example, recently overhauled its bail practices, adopting a risk assessment algorithm created by the Laura and John Arnold Foundation called the Public Safety Assessment™ (PSA) which generates a score that is intended to guide a judge’s determination of a defendant’s risk of failure to appear or of committing a crime if released before trial.

While promising, like human calculations, the algorithm approach is fallible.

From thousands of cases that arose over the six months following New Jersey’s bail reform, only 17 defendants received an option to post bail to secure their release.

While awaiting trial for an alleged assault, Zabdiel R. Vargas-Soto was released under electronic monitoring per the guidance of the PSA. Vargas-Soto had no prior criminal convictions and seemed to present a low risk of violence. But on release, he allegedly murdered two brothers.

It seems that the concerns raised by the Obama economic advisers and others—of detaining defendants who do not pose a risk of flight or committing crime if released, and releasing defendants who do pose such risks—may well persist after even the most well-intentioned reform. That is not an argument against state experimentation in pre-trial practices, particularly not against experimentation in developing effective risk assessment tools like the PSA; only against doing so on the false premise that bail is unconstitutional and therefore off-limits as one way to assure appearance at trial.

Bail remains on as firm a constitutional footing today as when the bail clause was written into the Bill of Rights. Arguments against money bail should remain focused on discrete practices that may be unlawful or bad public policy. The question that states ought to ask, therefore, is not whether the Constitution needs to be radically reinterpreted, but whether bail remains an effective means of ensuring appearance at trial, and if equally or more effective means now exist, is some change in order?

“Is Bail Unconstitutional?”

http://www.slate.com/articles/news_and_politics/crime/2015/06/is_bail_unconstitutional_our_broken_system_keeps_the_poor_in_jail_and_lets.html

Anthony Cooper was going to jail because he couldn’t afford to buy his way out. After being picked up for public intoxication at a bus station in Dothan, Alabama, at about 1 a.m. on June 13, Cooper was told that unless he paid $300 in bail money, he would have to spend six days behind bars while awaiting a court hearing. If Cooper, who is illiterate and suffers from mental illness, had had the money on hand, he could have gone free on the spot. But the 56-year-old’s only source of income comes from his Social Security benefits, and he didn’t have $300. And so Cooper, like many down-on-their-luck Dothan residents before him, was locked up.
It was shortly thereafter that Alec Karakatsanis, a civil rights lawyer based in Washington, D.C., who graduated from Harvard Law School in 2008, entered the picture. Working with a like-minded Alabama attorney named Mitch McGuire, Karakatsanis filed a class-action lawsuit in federal court on behalf of Cooper and others in his position, contending that Dothan’s bail policy, which called on people arrested by local police for misdemeanors and traffic offenses to come up with fixed sums ranging from $300 to $500, was unconstitutional. Specifically, Karakatsanis and McGuire argued, by allowing some people to purchase their freedom while detaining the indigent just because they were too poor to make bail, the city was in violation of the Equal Protection Clause of the 14thAmendment.

Recently, in response to Cooper’s lawsuit, the city of Dothan announced that it had changed its bail policy: Going forward, people awaiting hearings in Dothan Municipal Court will no longer be required to pay bail upfront. The city will move to an “unsecured bond” system in which defendants only owe money if they don’t appear in court when they’re supposed to. While the lawsuit against Dothan has not been dropped—Karakatsanis intends to get a court-ordered settlement that will enshrine the new policy and make it semi-permanent—it has already resulted in getting Cooper, along with an unknown number of other pre-trial detainees in Dothan, out of jail.

For Karakatsanis, co-founder of the nonprofit civil rights organization Equal Justice Under Law, Dothan is just one pot on a big stove: Since January, he has filed class-action lawsuits against four other small cities with bail schemes that don’t take into account people’s ability to pay, and he plans to file more. The suits are the opening moves of an ambitious campaign to abolish, on a national level, the practice of demanding secured money bail (i.e., cash) from pre-trial detainees as a condition of release. Taken together, they represent the first major effort since the dawn of the mass incarceration era in the 1980s to use the legal system to force reform in this area.

“Nobody should be held in a cage because they’re poor,” Karakatsanis told me. “Detention should be based on objective evidentiary factors, like whether the person is a danger to the community or a flight risk—not how much money’s in their pocket.”

One of Karakatsanis’ suits, against Velda City, Missouri, was filed on behalf of a 26-year-old mother of two who had been asked to pay $650 to avoid jail after being charged with having a broken headlight on her car and driving without insurance on a suspended license. That case, in which Karakatsanis worked with Thomas Harvey of the nonprofit pro bono law firm Arch City Defenders, ended earlier this month with a settlement that forbids the municipal court in Velda City—where most local arrestees brought in on misdemeanor charges and ordinance violations are prosecuted—from making people pay bail in order to avoid pre-trial detention.

“No person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond,” the court-ordered settlement read. That seemingly unequivocal declaration caused reformers around the country to take notice and prompted Tim Schnacke, the executive director of a research center focused on bail policy, to write an enthusiastic blog post about why “these 36 words” turned “every single thing we’ve been doing in bail in America on its head.” Jurisdictions that have “grown accustomed to poor people in jail and only rich people out of jail pretrial,” Schnacke wrote, should “get ready to change.”

Another city Karakatsanis has sued—Clanton, Alabama—is heading in the same direction as Velda City, in a case that moved the Department of Justice to file a statement of support in February. Like Dothan, Clanton stopped requiring secured money bail from new arrestees in response to the suit; Monday night, Karakatsanis filed a settlement agreement to a federal judge aimed at forcing Clanton to abide by the new policy for at least three years.

On their own, each of these lawsuits makes only a tiny dent in the population of Americans who are incarcerated because they can’t afford to make bail. The cities Karakatsanis has gone after so far—which also include St. Ann, Missouri, and Moss Point, Mississippi—are home to very small jails, and the number of people who have been let out thanks to his efforts looks positively inconsequential when you consider that, according to the latest Department of Justice statistics, there are almost a half-million Americans on any given day in pre-trial detention, waiting for court dates in jail even though they haven’t been convicted of any crime. But if Karakatsanis is successful, the work he’s doing could have serious ramifications for that population: Not only does his litigation strategy promise to put pressure on cities around the country to change their bail practices in order to avoid getting sued, the victories he has already notched against municipalities suggest that brandishing the 14th Amendment could represent an effective way to challenge money-based detention policies at the state level as well.

The ostensible point of bail is to make sure that people who are accused of crimes show up to their court dates. (Bail is returned if you do show up for court.) The reasoning is that if defendants have money on the line they are less likely to skip town before the justice system has held them accountable for their actions. Karakatsanis and other advocates for reform argue that bail is not necessary for this purpose. Cherise Burdeen, the executive director of the nonprofit Pretrial Justice Institute, noted in an interview that simply calling people before their court date, or sending them a text message reminder, has been shown to be extremely effective at reducing failure-to-appear rates.

More to the point, reformers like Burdeen and Karakatsanis say, it makes no sense to decide whether someone should be detained based on how much money they have: Not only is it unfair to keep an almost-certainly harmless person like Anthony Cooper in jail because he’s broke, it’s also irrational to release a potentially dangerous suspect like, say, alleged serial killer Robert Durst just because he has millions in the bank.

Karakatsanis is playing a long game, picking off low-hanging fruit in the form of small municipalities that require cash bail for minor violations in an attempt to lay the groundwork for constitutional challenges he hopes to mount later, both in larger cities and at the state level.
The reasons for this are strategic. For one thing, Karakatsanis’ small victories are useful to other reformers, like Nancy Fishman from the Vera Institute of Justice, who told me that in working with jurisdictions around the country on improving their incarceration policies, she and her colleagues at Vera can point to something like the Velda City settlement as evidence that cash bail regimes really do need to be overhauled. Secondly, bringing cases against cities that require cash bail for all misdemeanors, including very minor ones, highlights the unfairness of the practice.

“It’s so obvious to any person who spends even a small amount of time thinking about any of this stuff that there’s absolutely no reason to even have pre-trial detention in these minor cases,” Karakatsanis said. “There’s no reason why someone should be held in jail for a week or even four days for not having a leash on their dog or a headlight being out or driving with a suspended license. There’s no reason why an arrestee should be held in jail because he’s poor in one of those cases, and there’s no question that any of these people are dangerous to the community.”
But the argument works when applied to all kinds of crimes, he said. “The constitutional principles that we’re applying in these cases that involve more minor arrests are equally applicable to drug distribution or burglary or armed robbery or rape or murder.”

That doesn’t mean Karakatsanis thinks people who have been charged with serious crimes like rape or murder should be able to walk free just because they haven’t been convicted yet—only that people’s fates should be determined as objectively as possible, based not on how rich or poor they are but on whether or not there’s evidence that says they ought to be detained.
For now Karakatsanis is focused on taking incremental steps. “I’m looking to find other cities that want to work with us to change their practices without being sued,” he said. “But we’ll continue to bring lawsuits against cities and counties that insist on keeping these blatantly illegal practices alive.”

(Related to the Ethical Dilemma—“Theranos Is Shutting Down”): “Theranos Founder Elizabeth Holmes Indicted on Fraud Charges”

For an article addressing the indictment of Theranos founder Elizabeth Holmes, please refer to the following article:

“Theranos Founder Elizabeth Holmes Indicted on Fraud Charges”

https://www.nytimes.com/2018/06/15/health/theranos-elizabeth-holmes-fraud.html

According to the article, Elizabeth Holmes, the disgraced founder of Theranos, the lab testing company that promised to revolutionize health care, and its former president, Ramesh Balwani, were indicted recently on charges of defrauding investors out of hundreds of millions of dollars as well as deceiving hundreds of patients and doctors.

The criminal charges were the culmination of a rarity in Silicon Valley — federal prosecution of a technology start-up. This one boasted a board stacked with prominent political figures and investors, and a startling valuation of $9 billion just a few years ago. In the fabled universe of overnight billionaires and unicorns, companies with billion-dollar valuations, Ms. Holmes had catapulted herself and her company into the buzz-filled world of “disrupters” by pledging to upend the health industry and give consumers control over their own care.

Both Ms. Holmes and Mr. Balwani pleaded not guilty to charges of wire fraud. Lawyers for Ms. Holmes could not be reached for comment, but a lawyer for Mr. Balwani said in a statement that his client was “innocent and looks forward to clearing his name at trial.”

The indictment was filed by the United States attorney’s office in San Francisco and came about three months after the Securities and Exchange Commission settled civil fraud charges against Ms. Holmes.

Recently, Theranos also announced that Ms. Holmes, who founded Theranos in 2003 as a 19-year-old Stanford University dropout, stepped down as chief executive. She will be replaced by David Taylor, the company’s general counsel, according to a statement from the company, which did not respond to requests for additional comment.

In announcing the indictment, federal prosecutors highlighted the culture of Silicon Valley and the lure of exciting new ventures.

“Investors large and small from around the world are attracted to Silicon Valley by its track record, its talent, and its promise,” prosecutors said. “They are also attracted by the fact that behind the innovation and entrepreneurship are rules of law that require honesty, fair play, and transparency.”

Ms. Holmes and Mr. Balwani were accused of misleading the public and their investors by promoting devices and tests that not only did not work but also endangered lives. Ms. Holmes had drafted a spellbinding sales pitch and relentlessly pursued anyone — including her own employees — who doubted her new blood-testing machines.

“There is one cardinal rule in Silicon Valley that most people never realize,” said Paul Saffo, a longtime technology consultant, “and this is never ever breathe your own exhaust.”

“This is someone who is so deeply self-deluded by her optimism and faith in herself,” he said.

“And delusion is contagious.”

The concept was irresistible: Theranos said it could take a few drops of blood from a simple finger prick to detect everything from H.I.V. to a diabetic’s A1C level. Relying on a proprietary technology to analyze the small quantities of blood, the private company offered a wide array of tests much more cheaply than existing blood tests.

It even partnered with Walgreens, the giant drugstore chain, to open up centers in Arizona and California. Theranos reached a settlement with Walgreens last August.

At its peak, Theranos attracted prominent venture capitalists like Timothy Draper, Ms. Holmes’s former neighbor, and Don Lucas, an early investor in Oracle.

Ms. Holmes, a charismatic executive who wore black turtlenecks and spoke passionately about her aim to remake health care, also assembled a star-studded board, including two former secretaries of state, George P. Shultz and Henry A. Kissinger, as well as two former United States senators. Gen. Jim Mattis, the current secretary of defense, also served on the board. He told Fortune magazine in 2014 that he joined the board because he was impressed by the strength of Theranos’s leadership.

In October 2015, Ms. Holmes appeared on the cover of Inc. magazine, next to the headline “The Next Steve Jobs.”

But a series of articles in The Wall Street Journal exposed the company’s testing as deeply flawed, and her story is now the subject of a book by the articles’ author, John Carreyrou, called “Bad Blood: Secrets and Lies in a Silicon Valley Startup,” and a forthcoming movie.

Wealthy investors collectively lost hundreds of millions of dollars, including Walmart’s Walton family, the media mogul Rupert Murdoch, as well as Betsy DeVos, the secretary of education, and her relatives.

In addition to misleading investors about the promise of the company, federal officials charged the two with encouraging patients and doctors to use the company’s blood tests in spite of knowing they “were likely to contain inaccurate and unreliable results.”
In 2016, federal regulators barred Ms. Holmes from owning and operating a laboratory for two years. Later that year, Theranos announced it was closing its lab and laying off about 340 employees, or more than 40 percent of its work force.

Last March, the S.E.C. charged Ms. Holmes with widespread fraud, accusing her of exaggerating — even lying — about her technology while raising $700 million from investors.

In announcing the charges, the S.E.C. said that Theranos and Ms. Holmes had agreed to a settlement, with Ms. Holmes agreeing to pay a $500,000 penalty. She and the company did not admit nor deny the allegations. Mr. Balwani did not settle, and planned to fight the allegations.
Theranos’s collapse has given pause to venture capitalists, but Lakshman Ramamurthy, a former official with the Food and Drug Administration and now the global regulatory lead at Foundation Medicine, is not certain investors have learned their lesson. Companies like Theranos, which offered little hard evidence that its tests worked to its investors, “have their own rules,” he said.

“That hasn’t changed.”

“The Silicon Valley hubris remains,” Mr. Ramamurthy said.