Northland officials keep watch as bail reform gains momentum
Northeastern Minnesota Chief Public Defender Dan Lew sees common threads in the pretrial incarceration population at the St. Louis County Jail. "The poor stay in jail, leaving aside public safety," he said. "Poverty and a bail system that doesn't...
Northeastern Minnesota Chief Public Defender Dan Lew sees common threads in the pretrial incarceration population at the St. Louis County Jail.
"The poor stay in jail, leaving aside public safety," he said. "Poverty and a bail system that doesn't consider ability to pay is the main contributor."
As many jurisdictions nationwide begin to re-examine bail practices and, in some cases, implement sweeping reforms, Lew is keeping a close eye on trends and advocating for action locally. Far too many defendants face steep dollar figures they could never possibly meet, he said.
Minnesota law provides for a presumption of pretrial release with or without conditions, which can include posting a monetary bond. But bail practices and requirements vary widely by state.
New Jersey this year essentially eliminated its cash bail system, replacing it with a risk-assessment that examines public safety concerns and the likelihood the defendant makes future court appearances.
Also this year, a California appeals court found that a San Francisco robbery suspect's $350,000 bail figure was unconstitutional. The defendant was ordered released, with several conditions, while his case was pending - a decision the state attorney general decided not to appeal.
As a result, the San Francisco Chronicle reported, local prosecutors are no longer asking judges to set bail amounts, instead asking that high-risk defendants be held without bail and all others be released with conditions, similar to probation.
In Chicago, the Circuit Court of Cook County last year adopted a policy "to ensure no defendant is held in custody prior to trial solely because the defendant cannot afford to post bail." As a result, pretrial service agents are tasked with requesting financial information from each in-custody defendant prior to their bail hearing.
Judges then are required to use a risk-assessment tool to establish a "reasonable bail" based on the likelihood of ensuring future appearances and protecting public safety. In bail is deemed inappropriate, the judge must elaborate on his or her reasoning in open court.
Sixth Judicial District Chief Judge Sally Tarnowski, who serves on the Minnesota Judicial Council, said she is not aware of any statewide efforts to change bail practices.
But Lew said that process can begin locally. He noted that Duluth's poverty rate is in excess of 20 percent - more than double the state average.
"We can move individual practices at courthouses away from setting certain amounts of money bail," he said. "There are, I think, opportunities here for us to really begin educating folks as a whole that bail must be not just an opportunity for those who are well-heeled to be released but bail needs to be based on one's ability to pay."
St. Louis County Attorney Mark Rubin, however, urged a cautious approach in the discussion.
"If there's a way we could ensure the safety of the public and reduce that number, I'd definitely be open to that idea," he said. "But I'm not aware of anything else we can be doing, short of the intensive pretrial release program that we already have. I'm not going to take the chance that someone is going to be hurt by an angry defendant or that someone is going to tamper with a witness."
Colin Doyle, an attorney at Harvard Law School's Criminal Justice Policy Program, said it is unconstitutional to detain a pretrial defendant simply because they cannot afford to post bond.
Yet he said the country has a "staggering pretrial incarceration rate" largely attributable to bail practices, many of which are built on long-standing norms that aren't codified into law.
"(Reform) isn't a radical idea," Doyle said. "What the U.S. is already doing is radical. The U.S. is an outlier."