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December 1, 2017
Taking a fresh look at pre-trial detention

By Jim Ash
Senior Editor

As jail costs soar, civil rights advocates head to federal court, and Facebook founder Mark Zuckerberg throws his philanthropic weight behind reforms, some Florida judges are taking a harder look at the need for monetary bail and pre-trial detention.

Judge Jack Tuter Judge Jack Tuter made reducing the Broward County Jail population “a personal quest” when he became chief judge of the 17th Circuit in July. Once plagued by chronic overcrowding, the facility emerged from 40 years of federal monitoring only last year.

Tuter has already implemented a “third-look” docket for some 300 indigent, low-level defendants awaiting trial on bonds of less than $2,000. He’s asking law enforcement to consider greater use of failure-to-appear notices in lieu of arrests.

And next year, Tuter wants court administrators to develop an “evidence-based” metric that judges can use to more objectively determine the need to set bail, order pre-trial detention, or some form of court monitoring.

A suspected shoplifter who can’t make bail shouldn’t be considered a major flight risk, Tuter says.

“How far can some guy get if he can’t even afford to post a $500 bond?” Tuter said.

Unnecessary pre-trial detention burdens taxpayers, Tuter says. “It costs an average of $140 a day to keep people in jail, where we have to house and care for them. And we’ve got people on dialysis, we’ve got people on chemotherapy. It’s enormously expensive.”

Quote But Tuter is quick to add that there’s more at stake than a local government’s bottom line.

“I’m certainly no bleeding heart,” Tuter said. “But these are people who are presumed innocent, and some of them are pleading guilty just to get out of jail. It’s not right.”

The American Civil Liberties Union of Florida couldn’t be more pleased.

“Out-of-this-world incredible,” is the way Benjamin Stevenson, a Pensacola-based ACLU of Florida attorney, describes Tuter’s efforts.

On October 13, Stevenson and the ACLU filed a federal class-action suit in the Northern District in Tallahassee alleging that the state is routinely violating the Eighth Amendment and 14th Amendment rights of indigent defendants in the Leon County Jail.

“All people are presumed innocent until convicted. Yet, an alarming number of criminal defendants remain jailed until trial because they cannot afford the monetary bail set in their case,” the suit alleges. “The bail system in Leon County has and continues to cause the unlawful detention of hundreds of people at any one time solely based on their poor economic status.”

The suit was filed on behalf of Brittany Knight, a day-care provider who was charged with aggravated manslaughter in connection with the death of a 4-month-old boy left in her care.

The suit describes Knight as “living paycheck to paycheck,” on her $9-an-hour wage before her arrest in June 2016. Her only significant asset, according to the suit, was a 1995 Ford Mustang worth $2,000.

The court agreed to cut Knight’s initial bond of $500,000 in half, and set special conditions for release, but she was still unable to pay. The First District Court of Appeal in Tallahassee refused to grant relief, and the Florida Supreme Court did not accept the case.

After more than a year behind bars, Knight pleaded guilty and was sentenced to a nine-year prison term. Knight is no longer a part of the federal suit, but the case is still pending. Attorney General Pam Bondi has indicated that she will ask for a dismissal.

Too many judges set bail without fully considering whether a defendant poses a flight risk or a threat to society, Stevenson said. And too many innocent people are in jail just because they’re poor, he said. Too many judges and prosecutors fail to appreciate the devastating consequences of pre-trial detention, Stevenson said, including job loss, eviction, and family breakup.

“If I could wave my magic wand, I would get rid of monetary bail, with very rare exceptions,” Stevenson says.

Tuter says he learned about the ACLU suit while he was attending a summit on pre-trial justice reform sponsored by the Conference of State Court Administrators. Florida Supreme Court Chief Justice Jorge Labarga and State Courts Administrator PK Jameson also attended.

“Some of these judges’ conferences can be quite dull, but I have to say, this one was quite good,” Tuter said. “If we don’t make some changes, who knows what the federal courts will do.”

Much of the discussion at the summit focused on a 2012-13 white paper by COSCA and the National Center for State Courts. The study found, among other things, that nationwide, taxpayers spent $9 billion on pre-trial detainees in 2010, and that 61 percent of jail inmates were in an “unconvicted status.”

Defendants who await trial behind bars are more likely to plead guilty, more likely to be convicted, more likely to serve prison sentences, and more likely to receive longer sentences, the study shows.

Kentucky essentially eliminated the for-profit bail bonds industry in 1976, according to the study, and uses a uniform assessment protocol that cut the failure-to-appear rate to just 10 percent. It also boasts a re-arrest rate for participants of just 8 percent.

Tuter is impressed by the numbers.

“We focus on selling these cash bonds because it’s the easiest thing to do,” Tuter says.

Earlier this month, Mark Zuckerberg and his wife, Chan Zuckerberg, announced they were joining a movement to get rid of monetary bail in the United States. The Chan Zuckerberg Initiative is the biggest single donor to the Washington, D.C.-based advocacy group, Civil Rights Corps.

Civil Rights Corps is dedicated to ending “wealth-based” pre-trial detention, according to a manifesto on its webpage. Earlier this year, the group convinced a federal judge in Texas to order Harris County to release all misdemeanor defendants who couldn’t afford bail within 24 hours.

Harris County appealed the temporary injunction, noting that it has implemented reforms. In fact, the NCSC white paper credits Harris County with saving $4.4 million in avoided detention costs in 2010 by implementing a “direct filing” system that includes evidence-based pre-trial risk assessment.

Tuter doesn’t believe it’s politically possible to get rid of the for-profit bail bond industry in Florida. But he said there’s plenty of room for reform.

“We ought to do a better job,” he said.

[Revised: 12-18-2017]