FT 12-07: Pretrial Detention Reform Act (Passed)

[YE]

AN ACT
to establish equal justice in pre-trial detention

Section 1 (Title)
i. The title of this Act shall be, the "Pretrial Detention Reform Act." It may be alternatively cited as the "Bail Reform Act."

Section 2 (Pretrial release decision)
i. Whenever a person should be accused of a crime under the laws of the Commonwealth of Frémont, or those of any constituent jurisdiction thereof, the court shall issue a pretrial release decision for the defendant without unnecessary delay, and in no case more than twenty-four hours after the defendant's arrest.
ii. In such issuance, the court may order either the release of the defendant on personal recognizance, or their detention pending a conditional release hearing upon the motion of the prosecutor.
iii. There shall be a rebuttable presumption that the defendant’s release on recognizance will reasonably assure the defendant’s appearance in court, the safety of any other person or the community, and that the defendant will not obstruct or attempt to obstruct the criminal justice process.
iv. When ordering the release of the defendant on recognizance, the court may additionally stipulate that the defendant commit no criminal act or acts during the period of release; that they avoid all contact with the victim of the alleged crime, or any witnesses who may be called to testify concerning the offense and who are named in the document authorizing the defendant's release; that the defendant receive reminders for all upcoming court appearances by phone, text, or email; or that the defendant be referred to non-mandatory job training or medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency.
v. A defendant released on recognizance shall not be assessed any fee or other monetary assessment related to processing the defendant's release.
vi. When ordering a detention and conditional release hearing, the court may impose conditions of release or detain the defendant in jail until the hearing, unless the defendant has already been released from custody, in which case the court shall issue a notice to appear to compel the appearance of the defendant at the hearing.

Section 3 (Detention and conditional release hearing)
i. Before trial, the court may order the detention of the defendant, or their release on conditions, on when granting the motion of a prosecutor for a detention and conditional release hearing, or if after a hearing the court finds clear and convincing evidence that no less restrictive conditions would reasonably assure the defendant's appearance in court, the safety of any other person or the community, and that the defen- dant will not obstruct or attempt to obstruct the criminal justice process.
ii. The prosecutor may file a motion for a detention and conditional release hearing at any time, including before or after the pretrial release of the defendant.
iii. If the defendant is in custody, the hearing shall be held no later than the day of the defendant's first appearance in court, unless the defendant or prosecutor should seek a continuance. If the prosecutor should seek a continuance, the hearing will be held in an expedited manner and no later than three days after the defendant’s first appearance; but if the defendant should seek a continuance, the hearing will be held no later than seven days after the defendant's first appearance.
iv. In course of the hearing, the defendant shall have right to be represented by counsel, or to be provided counsel if financially unable to obtain adequate representation; and to testify, call witnesses, and cross-examine witnesses who appear at the hearing. Testimony of the defendant given in course of the hearing shall not be admissible as evidence of the defendant's guilt in any future legal proceeding, but may be admissible as evidence in any future hearing to determine whether the defendant subsequently violated a condition of release or committed a crime while on release.
v. In determining conditions of release or detention, the court may take into account information, if applicable, concerning the nature and circumstances of the offense charged; the weight of the evidence that could be presented against the defendant at trial; the character and criminal history of the defendant; the specific danger to any other person or the community that would be posed by the defendant's release; and the nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the defendant's release.

Section 4 (Conditional release)
i. In a release order imposing conditions of release, the court must include a written statement that sets forth all the conditions to which the release is subject; advise the defendant of the penalties for violating a condition of release and the consequences of violating a condition of release; include written findings of fact and a written statement of the reasons for the conditions imposed, including the reason no less restrictive conditions would reasonably assure the defendant’s appearance in court or the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.
ii. The court may not order the defendant to pay any portion of the costs of any conditions of pretrial release. A defendant shall not be assessed any fee or other monetary assessment related to processing the defendant's release.
iii. The court may, by subsequent order and without a hearing, permit the release of a detained defendant or remove conditions of release.
ix. If, twenty-four hours after the imposition of conditions of release, the defendant continues to be detained, that defendant is entitled to a re-hearing.
iv. The defendant shall have right to appeal an order of conditional release.

Section 5 (Pretrial detention)
i. In a detention order, the court must include a written statement of the reasons for detaining the defendant before trial, including the reason no less restrictive conditions would reasonably assure the defendant’s appearance in court or the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.
ii. The defendant shall have right to appeal an order of pretrial detention.
iii. The detention and conditions of release hearing may be reopened at any time before trial if the court finds changed circumstances or information that was not known to the court, the prosecutor, or the defendant at the time of the hearing and that these changed circumstances or new information have a material bearing on the issue of whether there are conditions of release that will reasonably assure the defendant's appearance in court, the safety of any other person or the community, or that the defendant will not obstruct or attempt to obstruct the criminal justice process.
iv. Upon a motion of the prosecutor alleging that the defendant has committed a new crime or has violated a condition of release while on release from custody before trial, the court may reopen the hearing.

Sponsor: Truman
24 hours to advocate.

[Unconditional Surrender Truman]

This legislation is based on a report by the Harvard School of Criminal Justice (link) detailing several proposals to reform pretrial detention practices in Atlasia. The operative principle here is to ensure justice is administered equally regardless of income by eliminating money bail and limiting instances of pretrial detention. Specifically, §2 abolishes money bail and establishes the conditions for pretrial release of defendants in criminal cases; §3 details the process for conducting a conditional release hearing in the event the defendant's release is challenged by the prosecution; §4 outlines the prescription of terms and conditions for the defendant's release pending trial for criminal charges.

Persons charged with crimes under our laws should not be released or detained based on the sum of their bank account, and defendants who pose no danger to their fellow citizens should not be imprisoned without ever having been convicted of a crime. I encourage my colleagues to consult the Harvard report and to raise any concerns they may have.

[The world will shine with light in our nightmare]

A similar bill was passed in January that achieves the same ends.  Does the sponsor feel that this bill should override the bail reform act passed in January?

[Unconditional Surrender Truman]

A similar bill was passed in January that achieves the same ends.  Does the sponsor feel that this bill should override the bail reform act passed in January?

I do. The reforms set in motion by FMBRA are predicated on use of as risk assessment tool to determine the eligibility of a defendant for pre-trial release: because such tools rely on a data-driven approach to build a profile of the defendant and determine the likelihood they will appear in court, and the seriousness of the threat (if any) posed to the public safety by their release, they are susceptible to corruption by systemic biases in the criminal justice system, especially with regard to racial profiling. Per page 14 of the report cited in my opening statement, the use of risk assessment tools has been criticized by civil rights groups (including the ACLU and the NAACP) on grounds they "threaten to further intensify unwarranted discrepancies in the justice system." The bill likewise does not guarantee the defendant's right to be represented by counsel during deliberations on pre-trial release, does not allow the defendant to call witnesses on their behalf, and does not abolish money bail (at least as far as I can tell*). While a step in the right direction, FMBRA does not go far enough, and this legislation would correct inequities still present in that Act.


*In reviewing FMBRA, it was not clear to me whether §5(4) ("A person shall not be required to pay for any non-monetary condition or combination of conditions imposed pursuant to this section.") actually abolishes money bail. Perhaps I am just dense (quite possible), but "shall not be required to pay for any non-monetary condition" sounds to me as if a person may be required to pay for a monetary condition, i.e. bail.

[The world will shine with light in our nightmare]

The FMBRA was based on, and much of the text copied from, a California law signed by Governor Jerry Brown, which I will note was criticized by criminal justice reform activists on the basis that the bill did not go far enough and that the risk assessment tool would open the door to systematic bias and corruption in the criminal justice system.  I acknowledged this in my advocacy for the bill, and I was unsure of how to alleviate that concern and it did not receive as much attention by the House as I had hoped.  I've looked over this bill carefully and it does seem to correct many of the blindspots of the original bill.

This has my full and unwavering support.

[Virginiá]

I agree with much of this bill, but I have a few questions:

the court may additionally stipulate that the defendant commit no criminal act or acts during the period of release

Isn't this part of §2.4 superfluous? People are already supposed to not commit crimes anyway. Or is this necessary to state that committing additional criminal acts during this period will affect their current release status?

-

How are release conditions handled for crimes such as murder or rape? Is there any difference?

[Unconditional Surrender Truman]

I agree with much of this bill, but I have a few questions:

the court may additionally stipulate that the defendant commit no criminal act or acts during the period of release

Isn't this part of §2.4 superfluous? People are already supposed to not commit crimes anyway. Or is this necessary to state that committing additional criminal acts during this period will affect their current release status?

Essentially. "Necessary" I suppose is a matter of opinion; but committing further criminal acts while released awaiting trial would per §2(iv) constitute a violation of the terms of a defendant's release and grounds for its revocation.

How are release conditions handled for crimes such as murder or rape? Is there any difference?

All crimes are treated equally, though in a case where the defendant's release would seriously jeopardize the public safety, I cannot imagine the prosecutor would not petition for their detention.

[Unconditional Surrender Truman]

Further thoughts?

[Unconditional Surrender Truman]

Okay, then . . . I move for a final vote. And it had better be unanimous, too, because if this gets voted down without anyone voicing opposition during debate, my next bill will be to send every Nay voter to the Alaskan gulags.

[YE]

A 48 hour vote is open.

[YE]

Aye

[Unconditional Surrender Truman]

Aye!

[AustralianSwingVoter]

Okay, then . . . I move for a final vote. And it had better be unanimous, too, because if this gets voted down without anyone voicing opposition during debate, my next bill will be to send every Nay voter to the Alaskan gulags.

I'm very tempted to vote Nay just because a holiday to Alaska would be lovely at this time of year.

[The world will shine with light in our nightmare]

Aye to the bill, Nay for the free Alaskan vacation.

[AustralianSwingVoter]

Aye to the bill, Nay for the free Alaskan vacation.

[YE]

Passes 4-0.

[The world will shine with light in our nightmare]

AN ACT
to establish equal justice in pre-trial detention

Section 1 (Title)
i. The title of this Act shall be, the "Pretrial Detention Reform Act." It may be alternatively cited as the "Bail Reform Act."

Section 2 (Pretrial release decision)
i. Whenever a person should be accused of a crime under the laws of the Commonwealth of Frémont, or those of any constituent jurisdiction thereof, the court shall issue a pretrial release decision for the defendant without unnecessary delay, and in no case more than twenty-four hours after the defendant's arrest.
ii. In such issuance, the court may order either the release of the defendant on personal recognizance, or their detention pending a conditional release hearing upon the motion of the prosecutor.
iii. There shall be a rebuttable presumption that the defendant’s release on recognizance will reasonably assure the defendant’s appearance in court, the safety of any other person or the community, and that the defendant will not obstruct or attempt to obstruct the criminal justice process.
iv. When ordering the release of the defendant on recognizance, the court may additionally stipulate that the defendant commit no criminal act or acts during the period of release; that they avoid all contact with the victim of the alleged crime, or any witnesses who may be called to testify concerning the offense and who are named in the document authorizing the defendant's release; that the defendant receive reminders for all upcoming court appearances by phone, text, or email; or that the defendant be referred to non-mandatory job training or medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency.
v. A defendant released on recognizance shall not be assessed any fee or other monetary assessment related to processing the defendant's release.
vi. When ordering a detention and conditional release hearing, the court may impose conditions of release or detain the defendant in jail until the hearing, unless the defendant has already been released from custody, in which case the court shall issue a notice to appear to compel the appearance of the defendant at the hearing.

Section 3 (Detention and conditional release hearing)
i. Before trial, the court may order the detention of the defendant, or their release on conditions, on when granting the motion of a prosecutor for a detention and conditional release hearing, or if after a hearing the court finds clear and convincing evidence that no less restrictive conditions would reasonably assure the defendant's appearance in court, the safety of any other person or the community, and that the defen- dant will not obstruct or attempt to obstruct the criminal justice process.
ii. The prosecutor may file a motion for a detention and conditional release hearing at any time, including before or after the pretrial release of the defendant.
iii. If the defendant is in custody, the hearing shall be held no later than the day of the defendant's first appearance in court, unless the defendant or prosecutor should seek a continuance. If the prosecutor should seek a continuance, the hearing will be held in an expedited manner and no later than three days after the defendant’s first appearance; but if the defendant should seek a continuance, the hearing will be held no later than seven days after the defendant's first appearance.
iv. In course of the hearing, the defendant shall have right to be represented by counsel, or to be provided counsel if financially unable to obtain adequate representation; and to testify, call witnesses, and cross-examine witnesses who appear at the hearing. Testimony of the defendant given in course of the hearing shall not be admissible as evidence of the defendant's guilt in any future legal proceeding, but may be admissible as evidence in any future hearing to determine whether the defendant subsequently violated a condition of release or committed a crime while on release.
v. In determining conditions of release or detention, the court may take into account information, if applicable, concerning the nature and circumstances of the offense charged; the weight of the evidence that could be presented against the defendant at trial; the character and criminal history of the defendant; the specific danger to any other person or the community that would be posed by the defendant's release; and the nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the defendant's release.

Section 4 (Conditional release)
i. In a release order imposing conditions of release, the court must include a written statement that sets forth all the conditions to which the release is subject; advise the defendant of the penalties for violating a condition of release and the consequences of violating a condition of release; include written findings of fact and a written statement of the reasons for the conditions imposed, including the reason no less restrictive conditions would reasonably assure the defendant’s appearance in court or the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.
ii. The court may not order the defendant to pay any portion of the costs of any conditions of pretrial release. A defendant shall not be assessed any fee or other monetary assessment related to processing the defendant's release.
iii. The court may, by subsequent order and without a hearing, permit the release of a detained defendant or remove conditions of release.
ix. If, twenty-four hours after the imposition of conditions of release, the defendant continues to be detained, that defendant is entitled to a re-hearing.
iv. The defendant shall have right to appeal an order of conditional release.

Section 5 (Pretrial detention)
i. In a detention order, the court must include a written statement of the reasons for detaining the defendant before trial, including the reason no less restrictive conditions would reasonably assure the defendant’s appearance in court or the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.
ii. The defendant shall have right to appeal an order of pretrial detention.
iii. The detention and conditions of release hearing may be reopened at any time before trial if the court finds changed circumstances or information that was not known to the court, the prosecutor, or the defendant at the time of the hearing and that these changed circumstances or new information have a material bearing on the issue of whether there are conditions of release that will reasonably assure the defendant's appearance in court, the safety of any other person or the community, or that the defendant will not obstruct or attempt to obstruct the criminal justice process.
iv. Upon a motion of the prosecutor alleging that the defendant has committed a new crime or has violated a condition of release while on release from custody before trial, the court may reopen the hearing.