Out on bond: What has ‘free bail’ meant for Cullman County?

Cullman County Sheriff’s Office and Detention Center (Cullman Tribune file photo)

CULLMAN, Ala. – Since the institution of a federal judge’s injunction against Cullman County Sheriff Matt Gentry last fall, an injunction which requires him to “release all bail-eligible defendants on unsecured (non-monetary) appearance bonds,” the rate of suspects failing to show up for court dates has almost doubled; drug crimes, in which suspects already have statistically high rates of failure to appear (FTA) for court, now occur at an average of 16 to 17 more cases per month than before the injunction.  

Under an unsecured or non-monetary bond, a suspect does not have to post bail, but simply agrees to pay what would have been the bail amount if he or she does not show up for court.  

FTA defendants have been linked to serious crimes in the Cullman area.  On April 13, 2019, Cullman resident Tommy Piper was shot and killed in his home, and police arrested Charles Patrick Wayne Burgess a short time later at a local hotel, charging him with murder.  (www.cullmantribune.com/2019/04/14/update-victim-identified-suspect-charged-with-murder-in-cullman-shooting/)  Burgess was, at the time of the incident, facing drug charges in Morgan County and trespassing charges in Cullman County.  Both charges were misdemeanors, and he had been released on unsecured bonds in both cases.

Burgess missed his court date in Cullman, and was arrested on April 5, just eight days before the shooting, for FTA.  Under the current injunction against Gentry, the suspect could only be held for 48 hours before being given an additional unsecured bond and being released again.

In Cullman County, after a suspect has been released, the court mails him or her reminders of upcoming court dates.  In some jurisdictions, certain high-risk defendants can be monitored via GPS devices like ankle bracelets; but Cullman County did not have access to such resources at the time the injunction was enacted, and does not at this time.

How valid is the injunction?

A recent U.S. Supreme Court decision has called into question the validity of the injunction against Gentry.  On Sept. 13, 2018, U.S. District Judge Madeline Hughes Haikala ordered Gentry and the Cullman County Sheriff’s Office (CCSO) to “release all bail-eligible defendants on unsecured appearance bonds using Cullman County’s current bail schedule.”  (www.cullmantribune.com/2018/09/13/update-federal-judge-rules-cullman-county-bail-system-is-unconstitutional)

Gentry was being sued by Bradley Hester, who was arrested in 2017 for misdemeanor possession of drug paraphernalia.  After being unable to pay a $1,000 bond, he joined an existing class action against Gentry, the state of Alabama, and the 32nd Judicial Circuit.

According to her own documents, Haikala’s opinion was informed in part by the case of Walker v. City of Calhoun, Georgia.

U.S. Supreme Court decision on Walker v. City of Calhoun, Georgia upholds monetary bail under certain conditions

In 2017, Maurice Walker was arrested and held for six days in Calhoun, Georgia because he could not come up with $160 bail.  He filed suit against the City, claiming that he was detained excessively solely because he was poor.  A district court issued an injunction against the City, supporting Walker’s claim.  After the city enacted a new policy guaranteeing assessment of indigency and a bond hearing within 48 hours while maintaining the use of a monetary bond schedule, the 11th U.S. Circuit Court threw out the district court injunction.

Claiming that the City might revert to its old policy without the pressure of a court order, the district court issued a second injunction almost identical to the first.  The 11th Circuit Court dismissed that injunction as well, prompting the district court to request the U.S. Supreme Court to review the circuit court’s decision.

On April 1, 2019, the Supreme Court refused to conduct the review, in essence upholding the constitutionality of monetary bond, as long as suspects receive due process including prompt assessments of financial condition and bond hearings.

Observers have watched to see if Haikala would modify Cullman County’s injunction, but no action has been taken.  In a Sept. 4, 2018 memorandum that preceded the injunction, the judge acknowledged that, in the Walker case, the court in Calhoun had made positive changes to its methods; she noted that Cullman’s court had put new policies in place as well.

But then she also stated: “. . . Officials in Cullman County do not always comply with the written requirements in the new Standing Order” and “although the Cullman County Circuit Court has revised its written criminal pretrial procedures, the record demonstrates that the defendants (Sheriff Matt Gentry, Cullman Circuit Clerk Lisa McSwain, Cullman County District Court Magistrates Amy Black and John White and Cullman County District Judges Kim Chaney and Rusty Turner) do not fully comply with the new written procedures. And even if the defendants did comply, as discussed in greater detail below, the new procedures, though an improvement over the old, still are constitutionally deficient.”

Haikala’s memorandum continued:

“Mr. Hester’s evidence shows that secured money bail actually may undermine the government’s interest in court appearance because secured money bail results in longer periods of pretrial detention for those who cannot easily afford bail, which, in turn, is associated with higher failure to appear rates.

With respect to the issue of pretrial appearance, the plaintiffs’ evidence demonstrates that Cullman County likely would not see an increase in failures to appear with unsecured bonds.  Mr. Hester offered expert testimony and empirical studies to demonstrate that secured money bail is not more effective than unsecured bail or non-monetary conditions of release in reducing the risk of flight from prosecution.

And evidence suggests that most defendants released without financial incentives to appear in court still appear at a very high rate.

What has happened in Cullman County?

Haikala’s injunction went into effect in October 2018.  The Tribune tracked the issuance of alias warrant (warrants issued for FTAs) in Cullman’s District and Circuit Courts between Nov. 1, 2018 (a specified start date) and Apr. 23, 2019 (a randomly chosen end date); and also looked at the exact same time period a year earlier, Nov. 1 2017 to April 23, 2018.  Here is what we found:

  • Pre-injunction, 11/2017 – 4/2018: Courts issued 455 alias warrants
  • Post-injunction, 11/2018 – 4/2019: Courts issued 877 alias warrants

Suspects in drug cases are statistically among the most likely to skip court and the most likely to commit further crimes while awaiting trial, so The Tribune looked at numbers of drug cases appearing before the District Court, which is usually the first to process drug suspects.  From Nov. 2017 to April 2018, the court saw 563 drug cases.  Since the injunction went into effect, from Nov. 2018 to April 2019, the court saw 665 drug cases.

Since cases surrounding the injunction are active, Cullman County’s court and Sheriff’s Office staff are not permitted to speak publicly on the matter.  The Tribune reached out to Haikala, but was not permitted to speak to her.  Her clerk said any statement the judge might make will be issued electronically and will be available online through the restricted access case tracking service www.pacer.gov.

Test case in Jefferson County, Colorado

In her memorandum, Haikala noted “A study conducted by Claire M. B. Brooker, Dr. Jones, and Timothy R. Schnacke found that the average court appearance rate for criminal defendants in Jefferson County, Colorado did not differ significantly between judges who set more secured bonds and judges who set more unsecured bonds.”  

In 2013, that county’s court enacted an unsecured bond program.  Schnake wrote of the program later that same year, “Jefferson County, Colorado, successfully eliminated its use of a bail schedule, and although some believe it to cause slightly more work among justice officials (by requiring universal risk assessment, weekend advisements, and a more thoughtful consideration of bond conditions) the process better follows the law, has reduced the pretrial jail population, and has not led to any notable decreases in court appearance or public safety rates.”

In citing that example, Haikala declined to note that Jefferson County dropped the program in 2016.  

When the county was cited as an example for bond policy changes in Maryland, Jefferson County Commissioner Libby Szabo, Sheriff Jeffrey Shrader and County Attorney Peter Weir wrote to court officials in Maryland, saying, “The program did not work as intended. We did not save budget dollars.  The system suffers from a lack of accountability.  The District Attorney’s office originally had significant objections and concerns for public safety due to the bail reform initiative and those objections and concerns persist.

“The use of financial bail, including the use of commercial sureties, has been reintroduced into the system.  We believe accountability has improved and as a system we are functioning better.

“Fairness must be balanced against costs and the concern associated with the lack of accountability of the defendant and increased risk to the safety of the public.  Financial bail is a very important tool, and it will continue in use in Jefferson County, Colorado.”

2017 Texas study challenges Haikala’s claims

A study on defendant appearance rates in Dallas County, Texas, published in 2017 (a year before Haikala’s injunction) by Stephen Clipper, Robert Morris and Amanda Russell-Kaplan, came to a different conclusion than those of Haikala about the effectiveness of monetary v. non-monetary bond.  Their report, entitled “The Link between Bond Forfeiture and Pretrial Release Mechanism: The Case of Dallas County, Texas,” indicated that the highest likelihood of a defendant showing up for court occurred when the defendant has a commercial bond–a bond paid by a bail agent or agency, with the defendant paying the agency a percentage of the bond as a fee.  In those cases, the agent can require cosigners and collateral from defendants, and usually provides a degree of supervision or oversight to make sure defendants keep their appointments.  The category of non-monetary bonds, labelled “pre-trial services” in the report, was at the bottom of the list with the highest rates of FTAs.

The study’s authors did write in their conclusion that all forms of bonding have their place, including non-monetary forms, saying, “Despite the lower FTA rate of commercial bail, each mechanism plays an important role (in) pretrial release.  This is particularly true for pretrial services bonds as this service allows indigent defendants to be released pretrial in the absence of financial collateral.  Financial restrictions should not preclude an individual from pretrial release, especially when pretrial detention affects criminal justice system processing.  Nevertheless, the criminal justice system needs to balance the competing aims of equitable pretrial release while ensuring a defendant’s appearance in court.

“Considering that over sixty percent of jail inmates in the US are being held pretrial, it is paramount that the criminal justice system has mechanisms to relieve this burden without wasting tax dollars.  It is also important, however, for defendants to appear in court.  FTA in court not only permits the defendant to escape judgment but also has an inherent expense to the criminal justice system.”

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W.C. Mann