[House Hearing, 116 Congress] [From the U.S. Government Publishing Office] THE ADMINISTRATION OF BAIL BY STATE AND FEDERAL COURTS: A CALL FOR REFORM ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTEENTH CONGRESS FIRST SESSION __________ THURSDAY, NOVEMBER 14, 2019 __________ Serial No. 116-64 __________ Printed for the use of the Committee on the Judiciary [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] Available via: http://judiciary.house.gov __________ U.S. GOVERNMENT PUBLISHING OFFICE 45-172 WASHINGTON : 2021 ----------------------------------------------------------------------------------- COMMITTEE ON THE JUDICIARY JERROLD NADLER, New York, Chair MARY GAY SCANLON, Pennsylvania, Vice-Chair ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking SHEILA JACKSON LEE, Texas Member STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr., HENRY C. "HANK" JOHNSON, Jr., Wisconsin Georgia STEVE CHABOT, Ohio THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas KAREN BASS, California JIM JORDAN, Ohio CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado HAKEEM S. JEFFRIES, New York MARTHA ROBY, Alabama DAVID N. CICILLINE, Rhode Island MATT GAETZ, Florida ERIC SWALWELL, California MIKE JOHNSON, Louisiana TED LIEU, California ANDY BIGGS, Arizona JAMIE RASKIN, Maryland TOM MCCLINTOCK, California PRAMILA JAYAPAL, Washington DEBBIE LESKO, Arizona VAL BUTLER DEMINGS, Florida GUY RESCHENTHALER, Pennsylvania J. LUIS CORREA, California BEN CLINE, Virginia SYLVIA R. GARCIA, Texas KELLY ARMSTRONG, North Dakota JOE NEGUSE, Colorado W. GREGORY STEUBE, Florida LUCY MCBATH, Georgia GREG STANTON, Arizona MADELEINE DEAN, Pennsylvania DEBBIE MUCARSEL-POWELL, Florida VERONICA ESCOBAR, Texas PERRY APELBAUM, Majority Staff Director & Chief of Staff CHRIS HIXON, Minority Staff Director SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY KAREN BASS, California, Chair VAL DEMINGS, Florida, Vice-Chair SHEILA JACKSON LEE, Texas JIM JORDAN, Ohio, Ranking Member LUCY MCBATH, Georgia F. JAMES SENSENBRENNER, Jr., TED DEUTHCH, Florida Wisconsin CEDRIC RICHMOND, Louisiana STEVE CHABOT, Ohio HAKEEM JEFFRIES, New York LOUIE GOHMERT, Texas DAVID N. CICILLINE, Rhode Island TOM MCCLINTOCK, California TED LIEU, California DEBBIE LESKO, Arizona MADELINE DEAN, Pennsylvania GUY RESCHENTHALER, Pennsylvania DEBBIE MUCARSEL-POWELL, Florida BEN CLINE, Virginia STEVEN COHEN, Tennessee W. GREGORY STEUBE, Florida JOE GRAUPENSPERGER, Chief Counsel JASON CERVENAK, Minority Counsel C O N T E N T S ---------- Thursday, November 14, 2019 Page OPENING STATEMENTS The Honorable Karen Bass, a Representative in Congress from the State of California, and Chair of the Subcommittee on Crime, Terrorism, and Homeland Security............................... 1 The Honorable W. Gregory Steube, a Representative in Congress from the State of Florida, and a member of the Subcommittee on Crime, Terrorism, and Homeland Security........................ 2 The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Chair of the House, Committee on the Judiciary...................................................... 4 WITNESSES Brandon Buskey, Deputy Director for Smart Justice Litigation, American Civil Liberties Union Criminal Law Reform Project Oral Testimony................................................. 7 Prepared Statement............................................. 9 Shelton McElroy, National Director of Strategic Partnerships, The Bail Project Oral Testimony................................................. 16 Prepared Statement............................................. 18 Alison Siegler, Director, Federal Criminal Justice Clinic, University of Chicago Law School Oral Testimony................................................. 20 Prepared Statement............................................. 22 Mary Smith, President, Ohio Professional Bail Agents Association Oral Testimony................................................. 40 Prepared Statement............................................. 42 Sakira Cook, Director, Justice Reform Program, The Leadership Conference on Civil and Human Rights Oral Testimony................................................. 45 Prepared Statement............................................. 47 STATEMENTS, LETTERS, MATERIALS, ARTICLES SUBMITTED Article by Cameron Langford submitted by Sheila Jackson Lee...... 72 Letter submitted by Representative Louie Gohmert, a Member of Congress of the State of Texas, and a Member of the Subcommittee on Crime, Terrorism, and Homeland Security of the House, Committee on the Judiciary from Senator Jeff Van Drew, First legislative District, New Jersey, Bob Andrezeiczak, Assemblyman, and Bruce Land, Assemblyman for the record........ 92 APPENDIX Letter submitted from the American Bail Coalition by Jeffrey J. Clayton........................................................ 96 THE ADMINISTRATION OF BAIL BY STATE AND FEDERAL COURTS: A CALL FOR REFORM Thursday, November 14, 2019 House of Representatives Committee on the Judiciary Washington, DC The Subcommittee met, pursuant to call, at 10:07 a.m., in Room 2141, Rayburn Office Building, Hon. Karen Bass [chair of the subcommittee] presiding. Present: Representatives Bass, Nadler, Demings, Jackson Lee, McBath, Richmond, Cicilline, Lieu, Dean, Mucarsel-Powell, Cohen, Gohmert, Reschenthaler, Cline, and Steube. Staff present: Moh Sharma, Member Services and Outreach Advisor; Ben Hernandez, Counsel; Joe Graupensperger, Chief Counsel; Milagros Cisneros, Detailee; and Veronica Eligan, Professional Staff Member. Ms. Bass. The Subcommittee will come to order. Without objection, the chair is authorized to declare recesses of the Subcommittee at any time. We welcome everyone to this afternoon's oversight hearing on ``The Administration of Bail by State and Federal Courts: A Call for Reform.'' I will now recognize myself for an opening statement. Today, the Subcommittee on Crime, Terrorism, and Homeland Security meets to discuss the important issue of bail reform. The national dialogue on reforming bail in the pretrial system both on the State and federal level has not waited for congressional attention. There has been a groundswell of community action that has resoundingly proclaimed that the current system is unjust, unfair, and does not work to protect communities. Since 2000, 95 percent of the growth in the jail population has consisted of pretrial detainees. This increase has had a profound impact on communities. That burden has been disproportionately placed on the shoulders of communities of color. Studies show that low-income and African-American communities are disproportionately impacted during the pretrial phase of the criminal justice process. One such study found that when compared to White men charged with the same crime and with the same criminal history, African-American men have bails set in amounts that are 35 percent higher. For Latino men, bail is set at 19 percent higher than it is for White individuals. These defendants who cannot afford bond receive harsher case outcomes and are three to four times more likely to receive a sentence to jail or prison and their sentences are two to three times longer. The situations for defendants who are women is particularly troubling. While women are more likely to be granted release on their own recognizance, they are much less likely to be able to afford bail when it is ordered. Eighty percent of women who are locked up pretrial are mothers. When mothers are jailed, the families, potentially, collapse. Their children are more likely to end up with relatives or be subjected to the foster care system. Using financial considerations as a deciding factor of whether an individual is freed or imprisoned perpetuates existing inequities. In a fixed money bail system wealthy defendants who pose a risk to public safety are, in a sense, able to buy their freedom. The wealthy and the poor receive radically different treatment solely based upon their ability to post bail, which often is set at arbitrary levels well above the means of many people to pay despite the low risk they may actually pose to society. I believe that is patently unfair and is un-American. This hearing offers Congress the opportunity to reshape the dialogue on how the community interacts with the criminal justice system. Reducing pretrial incarceration and the harm associated with unnecessary detention starts with giving law enforcement officers the discretion in deciding at the outset when a case would be better resolved by treatment or services. Those with mental health or substance use issues need not enter the criminal justice system unless they propose a clear danger. In the same vein, providing officers the ability to issue citations in lieu of arrest reduces time spent on low-level cases. According to the International Association of Chiefs of Police, issuing a citation takes less than a third of the time as processing an arrest. These types of reforms put officers back on the street to address violent crime. The Nation has reached an inflection point on bail reform. We must examine and pursue alternatives to money bail. The states, including my home State of California, have experienced challenges in reforming their system and we learned from what has worked and what still needs to be improved. Our discussion today can help both at the State and federal level. Our bail and pretrial systems must be reformed. I look forward to hearing from each of the witnesses as we initiate this dialogue in the Judiciary Committee. It is now my pleasure to recognize Mr. Steube for his opening statement. Mr. Steube. Thank you, Madam Chair, and thank you to the witnesses that are here today. The use of bail has been part of our legal system since the founding of our country. Our Founding Fathers included in the Eighth amendment to the Constitution on excessive bail. They did not include an outright prohibition on bail. The Eighth amendment acknowledges that in some cases a particular amount set for bail may be unconstitutional. As many of us already know, bail is simply used to increase the chances that the accused would return to court if they were released prior to trial. Of course, any deprivation of a person's liberty should be scrutinized. The presumption of innocence forms the bedrock of our criminal justice system. A person's race, gender, religion, national origin, or political belief should have no bearing on that presumption of innocence. Our responsibility as Members of Congress and as Members of the Judiciary Committee is to explore the different approaches that have been discussed and, in good faith, identify what works and what doesn't. In Texas, Texas has grappled with this very issue. On Thanksgiving Day 2017, Texas State Trooper Damon Allen was killed during a traffic stop. The man accused of killing Damon Allen had been released several months before on a $15,000 bail. In response, Governor Greg Abbott proposed reforms that would require judges to set bail based on whether the accused is a threat to law enforcement. The chief justice of the Texas Supreme Court, Martin Hike, announced his support of the governor's proposal. California has dealt with the issue of bail in the criminal justice system. In 2018, then California Governor Jerry Brown signed into law Senate Bill 10, which would effectively end cash bail. As states like Texas and California and others around the country examine these issues based on the feedback State lawmakers received from their constituents, Congress has also advanced efforts to reform bail practices. In 1966, Congress enacted the Bail Reform Act, which directed judges to release all noncapital case defendants on their own recognizance unless doing so would be inadequate to assure their appearance. This law did not allow judges to consider a defendant's potential risk to their community or to public safety. However, in 1984, after examining concerns regarding crimes being committed by those on pretrial release, Congress updated the Bail Reform Act to allow judges to detain particularly dangerous defendants from whom no stringent release conditions would reasonably assure public safety. Congress expressly prohibited using inordinately high financial conditions to detain defendants. In the U.S. v. Salerno, the Supreme Court upheld the constitutionality of the Bail Reform Act of 1984, holding that the law was constitutional because when the government's interest in protecting the community outweighs individual liberty, pretrial detention can be, quote, ``a potential solution to a pressing societal problem.'' As we move forward, we can learn from the history of bail and its use in the criminal justice system. The whole point of our criminal justice system is to protect the public while ensuring that the accused is innocent until proven guilty and that they are afforded due process. I fear that proposals that would eliminate the use of cash bail in its entirety, however well intentioned, will fail to take into the account the importance of public safety, will reduce flexibility and discretion for law enforcement, prosecutors, and judges, and simply ignore the voices of victims harmed in alleged crimes. Judges use cash bail to protect victims to prevent high- risk defendants from having contact with the victim or witness before trial. Imagine telling a survivor of domestic violence or sexual assault that cash bail is unfair or discriminatory to their alleged abuser. We owe it to these victims and the communities that we all represent to be forthright and honest about these issues and to always ensure that we are promoting public safety. I yield back. Ms. Bass. I am now pleased to recognize Chair of the full committee, the gentleman from New York, Chairman Nadler, for his opening statement. Chair Nadler. Thank you, Madam Chair. I thank the Subcommittee chair, Representative Karen Bass, for conducting this hearing on the important topic of bail reform. On any given day, six out of 10 people in federal and State jails, accounting for nearly half a million people, are incarcerated awaiting trial. These are Members of our community who are still innocent in the eyes of the law and may, in fact, never be found guilty of anything. Yet, they may spend months behind bars before even having the opportunity to contest the charges against them. The modern bail system has become unmoored from its original intent, which was only to ensure defendants return to court. The current system detains many people based solely on their inability to afford money bail, which results in serious problems for defendants of limited means. It also imperils the effective operation of the adversarial system of justice, and it may even endanger the community. The nearly half a million people incarcerated pretrial are at a disadvantage from the outset. Access to counsel while incarcerated pretrial may be hampered, undermining preparation of a defense and accumulation of evidence. These challenges, in turn, may unjustly encourage defendants to take plea bargains for crimes that they never committed. Defendants who cannot afford bail receive harsher case outcomes on average than those who are able to pay. They are three to four times more likely to receive a jail or prison sentence and the sentences are likely to be two to three times longer. In addition, opportunities for pretrial diversion programs, which address underlying factors that contribute to criminal behavior, may be unavailable to those who are incarcerated pretrial. Money bail systems challenge the very legitimacy of our criminal justice system and its presumption of innocence before trial. A number of studies on money bail show that it is not even effective at mitigating the risk of nonappearance while resulting in significant negative outcomes. Now is the time to investigate in earnest alternatives that promote rehabilitation and safety. Unnecessary pretrial detention has real consequences for families and communities. Being detained pretrial even for a short period can be daunting. For example, while in jail pretrial defendants risk losing their jobs and their homes, which can have a cascading effect on families. People who have lost their jobs because of being detained lose income and their ability to maintain their families, placing them at greater risk of engaging in crime. In fact, studies have shown that defendants detained and just three days in jail are more likely to be arrested on new charges. Unfortunately, the current money-based system promotes release of some of the most dangerous defendants because they can afford to post bond, then will little to no meaningful supervision, and keeping presumptively innocent people in jail is expensive. Local communities spend by some estimates $14 billion every year to detain people who have not been convicted of anything. It would be better to redirect these funds instead to crime prevention, rehabilitation of offenders, and assisting victims. In the federal context, the reforms of the past have been proven to be insufficient in balancing a defendant's liberty interest and ensuring that the communities remain safe. At the time of the passage of the Bail Reform Act in 1984, 81 percent of defendants were released at pretrial just before that law was enacted. Since enactment of the 1984 act, release rates have steeply declined, falling to 66 percent by 1996, 37 percent by 2006, and 25 percent in 2018, compared, again, to 81 percent 35 years ago. Even release rates of low-risk defendants have decreased. Surely, community safety does not justify this trend. A number of states have implemented reforms of their bail systems in recent years including, recently, my own State of New York, and the time has come for Congress to examine how federal courts administer pretrial bail as well. Conservatively, it costs upwards of $85 a day to incarcerate a person pretrial. Pretrial supervision, coupled with measures such as court date reminder programs, costs just a fraction of that. Congress should investigate the effectiveness of these practices and other potential reforms. As we consider alternatives to money bail, however, we must determine whether certain alternatives such as over reliance on risk assessment tools may generate additional negative consequences such as compounding the racial bias that already exists in other aspects of our criminal justice system. While developing effective and just alternatives to current money bail practices will undoubtedly require a financial commitment, the costs of inaction to defendants, their families, and the larger community is much higher. The negative impact on everyone of even a few days spent in jail pretrial may greatly outweigh the perceived benefit. I look forward to the discussion today of these very important issues and I, again, thank Subcommittee Chair Bass for conducting this hearing. I yield back the balance of my time. Ms. Bass. We welcome our witnesses and thank them for participating in today's hearing. Now, if you would please rise I will begin by swearing you in. Raise your right hand. Do you swear or affirm under penalty of perjury that the testimony you are about to give is true and correct to the best of your knowledge, information, and belief, so help you God? [A chorus of ayes.] Ms. Bass. Thank you. Let the record show the witnesses answered in the affirmative. We will now proceed with witness introductions. Brandon Buskey is the deputy director for Smart Justice Litigation at the ACLU Criminal Law Reform Project. His work focuses on reforming pretrial justice, expanding the right to counsel, juvenile sentencing, and residency restrictions for former sexual offenders. Prior to the ACLU, Brandon worked at the Equal Justice Initiative and the Civil Rights Bureau of the New York State Attorney General's Office. He is a 2006 graduate of New York University Law School. Following law school, he clerked for the Honorable Janet C. Hall of the U.S. District Court for the District of Connecticut. Shelton McElroy is the national director of strategic partnership of the Bail Project. Before assuming his current position, he worked at Parent Advocacy and Participatory Defense in Louisville, Kentucky, assisting parents in the reunification process with their children. He is a formerly incarcerated individual who was a ward of the State and foster care for over 15 years. Additionally, he was a Just Leadership Fellow and a 2018 BME Genius Award recipient. Mr. McElroy holds a Master's in mental health counseling and studies documentary studies at Duke University. Alison Siegler is a clinical professor of law and the founder and director of the Federal Criminal Justice Clinic at the University of Chicago Law School. She was previously a staff attorney with the Federal Defender Program in Chicago, a Prettyman Fellow at Georgetown University Law Center's Criminal Justice Clinic, and a law clerk for the U.S. District Judge Robert W. Gettleman. Ms. Siegler graduated magna cum laude from Yale College and earned a J.D. from Yale Law School and holds a degree from Georgetown. Mary Smith is President of the Ohio Professional Bail Association and serves as the mid-America director for the Professional Bail Agents of the United States. For nearly 30 years she has owned and operated Smith Bonds & Surety in Ohio. She holds a degree in paralegal studies from Ashworth College and licenses in Ohio surety, bail, property, and casualty health and life, and a nonresident bail license in Michigan. Sakira Cook is a program director for justice reform at the Leadership Conference on Civil and Human Rights. At the Leadership Conference, Ms. Cook leads the development of a federal policy agenda on reform of the criminal justice system for the coalition. Prior to joining the Leadership Conference, Ms. Cook served as a legal fellow at the Open Society Policy Center focusing on criminal justice, civil and racial justice reform. Ms. Cook attended Howard University where she earned a B.A. in international business and management and Wayne State University Law School. Please note that each of your written statements will be entered into record in its entirety. So, accordingly, I ask that you summarize your testimony in five minutes. To help you stay within that time, there is a timing light on your table. When the light switches from green to yellow, you have one minute to conclude your testimony. When the light turns red, it signals your five minutes have expired. Mr. Buskey, you can begin. STATEMENT OF BRANDON BUSKEY Mr. Buskey. Thank you. Chair Bass, Congressman Steube, thank you for the opportunity to testify today. Chair Nadler, thank you for your Committee leadership and for joining today's important hearing. My name is Brandon Buskey and I am the deputy director of Smart Justice Litigation at the ACLU. Here are the stakes. We cannot end mass incarceration and its legacy of racial injustice unless we radically reform our pretrial systems. Of the 2.2 million people trapped by the carceral epidemic, nearly one out of every five is a person locked in a jail cell awaiting trial. Most of these people are in jail because they cannot afford to purchase their release with money bail. Communities of color are uniquely damaged by this system. In response to this crisis, numerous civil rights organizations have brought dozens of lawsuits across the country to end our dependence on money bail. The ACLU successfully brought the first of these challenges in 2014 in Mississippi on behalf of Octavious Burks and Joshua Bassett. Respectively, they spent 10 and eight months in jail without a lawyer and without even being formally charged with an offense, all because they could not afford bail. Since then, the ACLU has brought over a dozen bail reform lawsuits. Our clients are people like Candace Edwards, who was arrested in Alabama for forging a $75 check. For this, her bail was set at $7,500. When we met Candace the day after her arrest, she told us the night before she had slept on the concrete floor of an overcrowded cell. Candace was seven months pregnant. In 1987, the Supreme Court in U.S. v. Salerno declared, ``In our society, liberty is the norm and detention prior to or without trial is the carefully limited exception.'' Today, too many of our criminal court systems have this exactly backwards. Octavious, Josh, and Candace are the norm. Indefinite detention without counsel is the norm. Liberty, sadly, is the arbitrarily denied exception. We must reverse course. The right to pretrial liberty is fundamental. Under Salerno, that means the government can only jail you before trial if it has an exceptional reason. Money is never an exceptional reason. It can delay a person's release by days or even weeks as their family and friends scramble to collect money. In that time, a person may experience many or all of the harms of pretrial detention such as loss of employment, housing, or custody. This trauma makes them more likely to be rearrested or to miss court. Also, research has repeatedly shown that money is almost always unnecessary. Providing free resources like court reminders or voluntary treatment referrals have proven better at serving the goals of the system to release people quickly, ensure a court appearance, and protect public safety. However, ending money bail is not enough. At the ACLU, our vision is a world in which 95 percent of all people arrested are released within 48 hours. Consider this. Pretrial violence is extremely rare and, thus, extremely hard to predict. Only 1.9 percent of people arrested for felonies are rearrested for violent offenses prior to trial. If we truly value the presumption of innocence, how many people can we detain to avoid a risk that happens in less than 2 percent of serious cases and less than 1 percent overall, especially when our methods of prediction, either by a judge alone or with the aid of a risk assessment, reliably reproduced the racial disparities that infect our entire system of criminal enforcement? If we stay true to our values, our vision is achievable. I want to suggest three things the Congress can do in addition to ending money bail to significantly increase pretrial release and racial equity, all while keeping communities safe. First, increase mandatory and presumptive release. This also means eliminating existing presumptions of pretrial detention, reserving incarceration for rare and very serious offenses. Those who are not immediately released must receive individualized hearings with counsel at which detention is prohibited unless the government proves that it is absolutely necessary. Second, invest in evidence-based reforms that work like court date reminders. Most people do not flee. They forget. Text message reminders and improved court notices significantly increase court attendance. Finally, set clear goals for risk assessments. Then evaluate whether they are working. To be clear, the ACLU opposes the use of risk assessments to determine pretrial liberty. However, jurisdictions using them must ensure that the tools actually result in releasing more people and reducing racial bias. Thank you. [The statement of Mr. Buskey follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Ms. Bass. Thank you. Mr. McElroy? STATEMENT OF SHELTON McELROY Mr. McElroy. Thank you. In thinking about waiting for criminal justice reform, I think about a story of a friend of mine that had gotten out of prison prior to me, and upon release he had gone through his belongings that he had had 10 years prior and he found a ticket to a shoe repair store that had been in his wallet over 10 years. A day or so after being home he went and he took that ticket to that shoe store and he was a little nervous, but he handed it to the cobbler, and the cobbler went in the back and rustled around for a pretty considerable amount of time and came back out and he said, they will be ready in a week. So that delay that we have in waiting for reform is very similar--that we have been waiting and waiting and waiting, and while we wait hundreds and thousands of people are held in pretrial incarceration this very day. People that are not guilty, people with the presumption of innocence, sit in jail and will be there throughout the holidays. At 18 years old, after spending 15 of my years in foster care, less than four months later I was sitting in jail during the holidays. My crime was burglary. I had gone into a home of someone I knew and I was hungry, and I started to eat out of the refrigerator and drink, and they came home and I ran out the back door. I was apprehended shortly thereafter and, you know, I found myself sitting in jail, my whole life right in front of me. And I had been in institutions my whole life, but nothing had prepared me for sitting in jail at this age. My foster mother, Virginia Rogers, was still living at the time and I called her, the phone call itself costing $5.65 and on a fixed income was far greater than she could afford. I told her the amount of my bail and she told me to hold on to God's unchanging hand, and that I did. You know, shortly thereafter I was visited by two church Members that made me aware that my foster mother, Virginia, had passed and I asked when the funeral was, and they said it had already passed as well. The charge I was charged with held one to five years and the prosecutor proposed a deal to me to take four years. You know, I could not balance that responsibility at that age and at that time as to what I should do. I know that I wanted to be a soldier. I had spent time at Fort Knox in a foster home and had gone to sleep listening to the tanks as they fired, and that was my dream. I had taken the ASVAB and two military reps were in the room and proposed to the judge to allow me to go and join, and the judge denied that. Hindsight being 20/20, I regret the day I violated the homeowner's space and unlawfully entered their property. Yet, today I know that my imprisonment spurred on by my inability to pay cash bail and defend myself adequately benefitted no one and, ultimately, cost taxpayers more than $35,000 a year during the time that I should have been in college. The collateral consequences of cash bail, especially on communities of color, can be devastating. I met a young lady named Niesha. Niesha had been accused of hitting her boyfriend. She was arrested on a Friday. A $50,000 bail was set. Her mother came up with $1,500, paid the down payment and Niesha was released with a commitment to pay $300 a month. The following Monday, the case was dismissed. But her debtor's prison never went away. While riding with Niesha, she still owed $1,700. The bail bondsman called, harassing her. Even offered a deal that if she paid $1,000 immediately, they would relinquish the debt. She didn't have $1,000 to pay immediately. They wanted to download apps on her phone to surveille her. They criticized her because she didn't have a voicemail set up on her phone. Cash bail is unjust. Taking away the presumption of innocence from anyone is unjust, and when we do this and we claim that we are doing this for public safety, we forget that even I was raped. When we talk about protecting the people that were harmed, the large majority of people that come into contact in these situations actually have trauma and they need healing, and they need reinvestment in those resources to heal. Thank you. [The statement of Mr. McElroy follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] STATEMENT OF ALISON SIEGLER Ms. Siegler. Chair Bass, Ranking Member, Committee Members, thank you for the opportunity to speak here today. My name is Alison Siegler and I am the director of the Federal Criminal Justice Clinic at the University of Chicago Law School. I am here today because the federal pretrial detention system is in crisis, and I believe Congress should intervene and fix the Bail Reform Act of 1984. Today, the federal pretrial detention system detains people at an astronomical rate. The percentage of defendants who are detained pending trial has increased from 19 percent in 1985 to fully 75 percent in 2018. That was never what Congress intended. The Act was supposed to detain just a narrow set of people, people who were highly dangerous or posed a high risk of absconding. But, in practice, pretrial detention is now the norm, not the exception, even though our Constitution says that every detainee is presumed innocent. This skyrocketing federal pretrial detention rate is problematic for several reasons. Studies show that pretrial detention actually makes people--makes society less safe because it increases a detainee's risk of recidivism. This is very salient in the federal system because most federal defendants are not violent. Violent offenders make up just 2 percent of those arrested for federal crimes. The data also shows that the vast majority of federal defendants appear in court and don't reoffend while they are on bond. In 2018, 98 percent of federal defendants nationwide did not commit new crimes on bond and 99 percent appeared for court as required. What is really remarkable about this is that it is seen-- this compliance rate is seen equally in districts that release a whole lot of people and districts that release almost nobody. So, when release rates increase, crime and flight do not increase. The high federal detention rate also imposes huge fiscal and human costs. On average, a defendant spends 255 days in pretrial detention, often in deplorable conditions. For example, in the depths of winter last January, pretrial detainees at the Metropolitan Detention Center in Brooklyn, New York, went without heat and electricity for days. While defendants sit in jail awaiting trial, they can lose their jobs, their homes, their health, even their children, and federal pretrial detention imposes a high burden on taxpayers. It costs approximately $32,000 a year to incarcerate a defendant and only $4,000 to supervise them on release. These problems make clear that the federal pretrial detention system is in crisis and that reform is needed. Today, I want to highlight two crucial fixes to the federal Bail Reform Act. First, eliminating financial conditions that require people to buy their freedom, and second, modifying the blanket presumptions of detention that limit judicial discretion and unnecessarily lock up low-risk defendants. First, a primary goal of the Act was to end practices that conditioned freedom on someone's ability to pay. Every day in federal courtrooms around the country judges impose conditions of release that privilege the wealthy. For example, some judges impose bail bonds. Other judges require family Members to co-sign a bond and document their net worth. At best, this unnecessarily delays release but, at worst, it results in the pretrial detention of indigent defendants. In other districts, indigent defendants are required to pay the costs of their own court-ordered electronic monitoring. Congress should end these injustices by modifying the Bail Reform Act to eliminate financial conditions and truly put rich and poor on equal footing. Turning to my next proposal for reform, the statute contains a rebuttable presumption that puts a thumb on the scale in favor of detention in many, many federal cases. This presumption of detention must be changed. It has had far-reaching consequences and very devastating ones. First, the problem is the presumption is the presumptions sweep too broadly. They detain low-risk offenders, and they fail to accurately predict who is going to reoffend and who is going to abscond from court. In fact, a Federal Government study found that the presumptions are actually driving the high federal detention rate. The study had a real-world impact. It led Chief Justice John Roberts and the Judicial Conference to recommend that Congress significantly limit these presumptions, certain of the presumptions. Today's hearing gives Congress a real opportunity to Act on that recommendation. Second, like mandatory minimum sentences, these presumptions of detention severely constrain judicial discretion. They prevent judges from making individualized determinations on release. Federal judges lament that the presumptions are really tying their hands. Although the presumptions were created with very good intentions, they have failed us in practice. In the words of a government study, the presumptions, and I quote, ``become an almost de facto detention order for almost half of all federal cases and have contributed to a massive increase in the federal pretrial detention rate with all of the social and economic costs associated with high rates of incarceration,'' end quote. I urge you to take action and to bring the federal pretrial system back in line with Congress's intent. Thank you, and I look forward to your questions. [The statement of Ms. Siegler follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Ms. Bass. Ms. Smith? STATEMENT OF MARY SMITH Ms. Smith. Good morning, Madam Chair Bass and Committee Members. My name is Mary Frances Smith. I am the President of the Ohio Professional Bail Association and I thank you for allowing me to testify today on this very important issue. The bail reform movement is not about reform. It is about elimination of monetary bail because of a mistaken belief that it is somehow discriminating against the poor. Currently, most accused persons take advantage of the taxpayer-funded pretrial release program. They walk out of jail on a signature or promise to return to court. However, if a judge sets monetary bail as a requirement, the accused turns to friends, family, or they can employ the services of a bail agent. Bond is set because the accused may have numerous failures to appear. Bond may not be posted because the family might demand that they be kept in jail because that is the only way to ensure sobriety or stop the defendant from reoffending. Many people, including myself, have lost relatives who got released and overdosed within hours. We tried to have them kept in jail so that we could set up rehab for them. But the system insisted on releasing them with no monetary bail, despite repeated warnings from families and friends that they could kill themselves or others. In the criminal justice system lives are at stake. We have to rely on what works. Commercial bail works. The failure to appear rate for commercial surety is below 2 percent. When pretrial release programs have a defendant fail to appear and a warrant or a capias is issued, local law enforcement attempts to serve that warrant. However, when a surety bond is placed with the court, the surety agent becomes responsible for the apprehension and returning the fugitive back before the court. If the surety does not return the fugitive, it must pay the bond. Without any judicial involvement--I repeat, without any judicial involvement, my nephew, Brent, was released through a county risk assessment tool that had determined that his risk for failure to appear was five out of six. Within 48 hours of his release, he was dead, due to another overdose. The case was dismissed, and because of the way the county counts and labels its results, Brent was listed as a success because his case was dismissed. Judges have used their experience and wisdom to make determinations on who will be released on an own recognizance bond, who should be detained until trial, and who should be offered bail. The bail reform movement is replacing judicial discretion with risk assessments. Most risk assessments are a brief list of seven to nine questions that ask things like have you ever been arrested before. Many accused will not offer honest answers. An algorithm can never replace the wisdom of a judge's discretion in deciding who should and should not be released awaiting trial on bail. The issue here is there is no accountability for pretrial release programs. How much federal money is being spent on pretrial at the State level through the Byrne JAG grants? How many accused are funded through taxpayer dollars that have failed to appear? How many of the accused released on pretrial have a history of violent crime? No one knows because Congress doesn't require the states to report. We have these pretrial programs that are not accountable being heralded as a magic solution for bail elimination. How can we support any bill that penalizes any State that allows monetary bail as an option to the court? Citizens have a right to know if their tax dollars are being used effectively or are being used to prop up a failed system of revolving jail house doors that have no accountability. Let us take an honest look at pretrial programs and lay them side by side against commercial bail. Let us compare the failure to appear rates. While bail reform sounds noble, let us look under the hood. Find the data examined--needed to examine pretrial. Allow judges to continue using their discretion and determine bail with the facts before them on a case-by-case basis. I thank you. [The statement of Ms. Smith follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Ms. Bass. Ms. Cook? STATEMENT OF SAKIRA COOK Ms. Cook. Chair Bass, Chair Nadler, and Ranking Member Gohmert, and Members of the committee, thank you for the opportunity to testify about the need for meaningful bail reform in State and federal court systems, including the need to eliminate cash bail and reduce pretrial incarceration without the use of algorithmic-based risk assessment tools. We commend the Subcommittee for focusing on the failures of our current State and federal pretrial systems. These systems are not serving their original purpose to ensure people show up to court. Instead, they fly in the face of a foundational constitutional principle: One is innocent until proven guilty. They also heavily rely on money bail for determining who can and cannot go home while awaiting trial. This has created a two-tiered legal system, one where poor people are detained pretrial because they can't afford bail and wealthier people can walk free. Pretrial detention is the norm in too many communities. Each year, 12 million people are admitted to jail and each night nearly half a million people sit in jail awaiting trial. This pervasive system of pretrial detention has devastating effects, especially on Black and brown people. Stories like those of Sandra Bland and Kalief Browder show the shocking-- sometimes shocking effects of pretrial detention. Pretrial incarceration increases people's likelihood of conviction and their risk of recidivism. Even a short period of pretrial detention can have cascading effects. People are at risk of losing jobs, homes, medical care, custody, and relationships. There are more effective methods than money bail to ensure court appearances. Pretrial support systems can address the structural barriers that keep people from showing up the court. They can provide childcare, transportation services, and other nonpunitive or for-pay supports. Even simple steps like providing reminder calls or text messages dramatically reduce rates of failed appearances. Fortunately, places like Washington, DC, Philadelphia, New York, and New Jersey are successfully moving away from money bail and safely reducing their pretrial populations. In some instances, jurisdictions have adopted undesirable alternatives, namely, the use of pretrial assessments. Risk assessments are actuarial tools that use historical data both from criminal legal databases and demographic factors to attempt to forecast an individual's likelihood of appearance at trial or risk of re-arrest. Research has shown, however, that these algorithms reflect current biases within the criminal legal system because they use flawed data, such as prior failures to appear and arrest rates, and as a result are profoundly limited. Champions of these tools argue that they are evidence based and can provide judges high-quality objective data that will help them make their jail population smaller without putting the public at risk. Independent studies have shown that many jurisdictions using risk assessments have actually increased pretrial incarceration, and none have reduced racial disparities in pretrial decision making. A group of data scientists recently wrote in a letter to this committee, I quote, ``Pretrial risk assessment tools suffer from serious methodological flaws that undermine their accuracy, validity, and effectiveness. Pretrial risk assessments do not guarantee or even increase the likelihood of better pretrial outcomes. The technical problems with these tools cannot be resolved and their limitations disproportionately impact communities of color.'' These concerns led the Leadership Conference to publish a statement of concern signed by more than a hundred civil rights, data science, and community-based organizations. The statement argued that risk assessment tools were deeply flawed, skewed based on race and social economic status, and therefore should not be used while making detention decisions. We believe that jurisdictions can safely end money bail and release most accused people pretrial without their use. Members of Congress, we need a new pretrial framework, one that dramatically reduces detention, ends racial and other inequities, and abolishes wealth-based discrimination. Federal legislation can help to incentivize states to end money bail, use alternatives to arrests and prosecution for minor offenses, and preserve the presumption of innocence by establishing robust pretrial adversarial processes hearings, all without the risk--use of risk assessment instruments. We look forward to working with the Members of this Subcommittee to meet these goals. Thank you. [The statement of Ms. Cook follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Ms. Bass. Thank you. We will now proceed under the five- minute Rule with questions, and I will begin by recognizing myself for five minutes. The questions I would like to ask, I want to focus on policy recommendations to understand specifically what you all would recommend because saying things like eliminating financial conditions and all, I would like to understand more about that. I wanted to begin with Mr. Buskey. I saw in your resume you also deal with juveniles, and so maybe you could talk about the differences in terms of juvenile detentions. Mr. Buskey. In terms of pretrial release? Well, I think that for juveniles--well, I should say as an initial matter, the goal of our pretrial system should be to ensure success and ensure that people are returning to court, ensure that they are not being rearrested, and so that primarily means identifying the proper metrics of support that will help a person succeed once they are released. So, the question of the differences for juveniles is really one of how do we assign the proper resources for a juvenile to ensure their pretrial release, and I am assuming you mean a juvenile who is in the criminal system. Ms. Bass. Yeah. Mr. Buskey. So, one, I will start with, again, counsel who understands the unique circumstances of a juvenile in that situation and then other means of support where the juvenile is in school, needs treatment, perhaps, for other issues going on. Just like it is for an adult, the question is what is the individualized assessment of what that juvenile needs to succeed prior to trial. Ms. Bass. You talked about mandatory release and that the government would need to prove. Could you speak more about that in terms of what your recommendations were? Mr. Buskey. Absolutely. When I say mandatory release, I am primarily talking about citations and release or summonses. So, this would be a situation where police make an arrest but that the jurisdiction has defined certain offenses where that person does not need to be booked into the jail. They are simply given a court date and then returned some time later. Ms. Bass. Do you think that there should be an increase in the electronic monitor? Mr. Buskey. No, and in fact, that is a major concern of the ACLU. The monitors are extraordinarily intrusive. They are a search under the Fourth Amendment, and, beyond that, there is very little evidence that they actually help to ensure that people return to court or prevent re-arrest. So, our vision is that those types of liberty-restricting conditions would be subject to very similar types of due process restraints as detention itself because they come very close to that phenomenon. Ms. Bass. Mr. McElroy, what would be your specific policy recommendations? Mr. McElroy. Yes. So, I think we are both in unison around not using monitoring systems. I will give you an analogy of a young man, 17 years old, a youthful offender who our organization posted cash money bail on behalf and the mother had the responsibility of taking him to check in every Thursday. She worked all day, passed through Long John Silver's drive-thru. On returning the following Thursday, he was violated and held in detention because that was a deviance from the path that they were supposed to take. She didn't think it through. She was hungry. Ms. Bass. Wait a minute. Wait a minute. Say that again. Mr. McElroy. Yeah. So, he is on monitoring. He has a weekly check-in on Thursdays to come to the court monitoring office. There are intrusive restrictions. You go, you come. The monitoring is a GPS system. She pulls in the Long John Silver's drive-thru. Gets some food from a long day's work. Goes home. They go back to check in the following Thursday, and he is incarcerated. Ms. Bass. Okay. Mr. McElroy. Yeah. Ms. Bass. So as a minor, he didn't do that. Mr. McElroy. No. No. So, there is not a lot of built-in capacity to be flexible. There are numerous clients that are on these monitors working in factories and manufacturing and the GPS doesn't read there in the building. The next thing you know, you have got law enforcement at their job arresting them. Ms. Bass. Wow. Mr. McElroy. So, and then public transportation. If the monitor is to keep somebody from somebody, the bus happens to drive through the community that they are in, you have a violation as well. Ms. Bass. Ms. Siegler--and I just have a few seconds left. So, recommendations? Ms. Siegler. Yes. The two most important reforms are the ones I mentioned. Ms. Bass. Right. Ms. Siegler. I apologize. The two most important reforms are the ones I mentioned earlier: Simply eliminating the presumptions of detention, eliminating financial conditions. If I may address the financial conditions issue. One part of the Act tells judges not to impose a financial condition that results in the detention of the person. But there are other parts of the Act that cut against this. So, there is parts of the Act that allow judges to detain somebody simply because the family has no property to post in the sense of a home or no money bail that they can sign for. So, in some districts, pretrial services literally recommends that somebody pay for their own electronic monitoring conditions in every single case. So, these are serious problems and I think we need a bright line Rule that just prohibits financial conditions. Ms. Bass. Thank you. Mr. Gohmert? Mr. Gohmert. Thank you. Appreciate all the witnesses being here today and your mental adroitness in adjusting to different Ranking Members. I am not--and I appreciate your insights into the federal system. I am extremely familiar with Texas's State system. When I took felony bench in January of '93, I was appalled to find that our commercial bailsmen had not had a bail forfeited in years and so people didn't show up. We started forfeiting bonds. I think they thought that perhaps by donating to my campaign that they would be able to continue. But, it would be like an insurance company except in premiums and never pay any claim. They got really good at--and I could see they were better than the county system for making sure that people showed up when they were supposed to because now they had a very substantial interest. There are problems with some commercial bail bondsmen who do take advantage of the situation and try to get people to sign up whether it is their homes, different things that should never be put at risk. So, I had concerns about that, and we would try to make sure people knew who were more ethical and moral. I have been concerned too over--it seemed like '70s, early '80s in Texas there was a huge concern about rights of offenders or alleged offenders, and crime rates had gone up. Then that pendulum swung hard the other way for a number of years. Crime rates have gone down. So, since I have been in Congress I have seen much more focus on offenders or alleged offenders' rights than a victim's rights. It didn't seem like race was an issue. It certainly wasn't for me. In bail it was what kind of crime is alleged to have been committed, what are the risks to the public and, specifically, victims, and I am concerned that we are getting away from concern about re-offenses. It is interesting, Mr. Buskey, to hear you concerned about electronic monitoring. All through the '90s I constantly was hearing, please let us use electronic monitoring. I understand the invasiveness and the constitutional concerns. But, you surely have got to admit it is not as intrusive as being behind bars and that is why defense attorneys were begging for electronic monitoring to make sure that they weren't gouging people. I am a fan of using treatment, not short term but at least 30 days or so of treatment, and I think that is something that should be encouraged since the majority of people seem to have drug or alcohol problems who come before courts. I am very concerned about pushing everybody out without any requirements of bail. Obviously, if somebody has bounced a check, for heaven's sake, they are not a violent risk. That is not something where there ought to be any kind of bail, like, had been set. Mr. McElroy, from the things you have said, my heart goes out to you, not for the offenses you committed and different punishments so much as the fact that you didn't have a loving family home. You were a foster child. I would love to know more about your background, but my time is running out. I have encouraged, when we were in the majority, we should have hearings on what seems to have more to do with crime in America and that is the breakdown of the family, and every child knowing they were loved and cared about. I would love any submission but especially from you, Mr. McElroy, from your perspective, if you could write a note and provide any insights to what would be helpful in that area. We appreciate all your time. I wish we had more than five minutes. I wish I talked faster so I could use it more effectively. But this is a huge issue, and we appreciate everybody being here. Any comments that any of you would have from your perspective? I just do think we need some kind of bail program, but it doesn't need to be punishing people. It needs to be protecting public more than anything and encouraging treatment for those that need it. I welcome your insights. You have given us your testimony. Any thoughts especially based on questions you have heard today that could be submitted to the Committee would be appreciated. Thank you very much. Ms. Bass. Mr. Chair? Chair Nadler. Thank you, Madam Chair. Ms. Siegler, at the federal level defendants are released pretrial at a significantly lower rate today than they were 20 years ago. We have been through that. I think it was 25 percent compared to 80 something percent in the '80s. Obviously, this is very concerning. What are the primary reforms that are needed in the federal bail system to address the falling release rates? Ms. Siegler. So, one issue I haven't discussed yet that I think is really important is that we have to limit the crimes that make someone eligible for detention in the very first place and this is separate from the presumptions of detention. The presumptions apply at the detention hearing, which usually happens a few days later. But the question is at the outset, at the very beginning of the case what makes somebody detention eligible, and this is one of the key drivers of these astronomical federal detention rates--the fact that in many federal cases the judge is just required to lock somebody up as soon as the prosecutor moves for detention. If it is a certain kind of case, then the judge has no wiggle room. The judge's hands are tied, and he or she just has to lock the person up, and that is true in pretty much every single federal drug case without regard to the person's criminal history. Chair Nadler. So, this was new since the '84 act? Ms. Siegler. This is since the '84 act. Exactly. Chair Nadler. Before '84 you had more discretion? You had discretion and it was exercised? Ms. Siegler. Yes. Before '84 there was discretion that could be exercised. This is section 3142(f) of the Act and it has these seven specific conditions, most of which are specific types of crimes--drug crimes, gun cases, and things like that. Drug cases account for nearly one-third of the federal docket. So, if you took drug cases off of the list of cases that automatically result in detention at the first appearance, we could have a huge impact on these federal detention rates. Alternatively, you could just make detention at the initial appearance a discretionary decision by the judge. Right now, it is mandatory. If we just gave the judge discretion-- Chair Nadler. Right now, it is mandatory that the defendant be detained if a certain-- Ms. Siegler. In certain kinds of cases, yes. It says shall, and if we just change the wording of the Act to may, then the judge has discretion and that is what we want. We want judges to be making these decisions, as many people here have said. So, I think--and we want judges, not prosecutors, making that decision. That is the right decision point. Chair Nadler. Thank you very much. Mr. McElroy, the collateral consequences of unnecessary pretrial confinement are grave. You mentioned some. What are the lasting impacts, in your experience, of being detained pretrial? Mr. McElroy. Yeah. So, I want to definitely say that people that are impacted by incarceration are resilient, whole, and resourceful, right. So, this isn't a story of a deficit. This is a story, in my own personal, of overcoming a system. It wasn't a lack of family, because it was a system that deteriorated the ability for my mother to provide for me-- a system, policy made in this very chamber, that decided that when a child goes into foster care you had to expedite termination of parental rights. That happened right here when you had the majority, sir. So, I want to talk about the system that has fed, then fueled mass incarceration. Okay. That is why we are here. It is not because communities are weak. It is not because families are weak. So, the residual consequences are that we have Black and brown communities that are decimated by mass incarceration and it is not slowing down. It is not slowing down. The bail bonds industry makes $2 million off the backs of Black women. That is who pays the bill on behalf of their children. Women. Chair Nadler. Thank you. Ms. Cook, pretrial risk assessment tools present clear concerns. What alternatives do you think states could implement that protect community safety and ensure defendants return to court without some of the problems of pretrial risks assessment? Ms. Cook. So, we believe that we can increase mandatory and presumptive release with cite and return to court summons. We can also dramatically increase pretrial supports like transportation services, childcare services, even the smallest thing like redesigning summons forms so people understand them better and understand when they have to show up to court, as well as text message reminders. All these things can increase the likelihood that someone will appear for their court date in the future. Public safety, of course, is something that we should be concerned about. But that is the very limited exception. 90- five percent, as Brandon said, of people can be safely released on their own recognizance or with very, very limited-- Chair Nadler. On what basis do you determine the 5 percent or the 2 percent or whatever who cannot without using a risk assessment tool that is problematic? Ms. Cook. We know that the majority of people who are detained pretrial today are there--almost two-thirds of them are there for misdemeanors, are there for very low-level offenses, and knowing that gives us some sense of who those folks are and that they can be released pretrial. Many of them are sitting there because they can't afford bail. So, in the limited circumstances where there needs to be a determination of whether someone's condition should be applied to someone or detention should happen. That has to be done in a robust adversarial hearing process where a person has counsel, where they are able to present witnesses, where there is evidence that is able to support that decision, and then a judge should make that decision, not a risk assessment tool. Chair Nadler. Thank you very much. My time has expired. I yield back. Ms. Bass. Mr. Cline? Mr. Cline. Thank you, Madam Chair, and I thank the witnesses for being here as well. As a former prosecutor at the local level in Virginia, I have a perspective on bond that is a little different from the federal perspective. But, a lot of things are similar. I am intrigued by Ms. Siegler's statement about no bail for certain offenses. You were talking about presumption cases, right? A presumption against bond in certain cases, right? Ms. Siegler. So yes, there are two places where this is a problem. Yes, at the detention-- Mr. Cline. Not a problem. I am just trying to clarify your statement. Ms. Siegler. Yes. Mr. Cline. You said there were certain offenses for which there is no bond, and I don't think that is accurate. Ms. Siegler. Oh, no. I didn't mean to say that. I apologize. Mr. Cline. Okay. Ms. Siegler. What I meant was there are certain offenses for which when, at the very first appearance, the judge must detain the person until a detention hearing, which is usually three days later. Mr. Cline. Okay. Ms. Siegler. That was the point I was talking to Mr. Nadler about. Mr. Cline. Thank you for clarifying that. Okay. There are a number of presumption cases on the books just as there are at the State level. It seems to be growing in number for which the--it is up to the future defendant to have to prove--to overcome that presumption against bail. I think that whether it is at the federal level or at the State level, what we are seeing is an effort to box in and tie hands and limit options, whether it is for judges, whether it is for prosecutors, because they are involved in the bail process too and a lot of times it is done up at the judge's bench, especially at the local level. First thing in the morning you have a probation officer there. The individual is there. They are appointed an attorney. They can set a bond hearing for the attorney to represent them. But at that point they don't have anybody right there and so, really, it is a conversation that is going on. So, whether we are talking about presumptions on the one end or mandatory release options which is being talked about, I think you are tying the hands on both ends of the spectrum and we need to leave as much discretion as possible to the judges who are evaluating the factors at stake here--whether the individual is going to be a danger to the community if released, whether the individual is going to be a flight risk, what that criminal history shows regarding failures to appear. If there are failures to appear on the record, a judge is going to not want to have another failure to appear on the record when they don't show up the next time for whatever reason that occurs. Whether it is a financial reason or whether it is some reason related to the person's work situation, family situation, these things will come out in the process if the judge is given the discretion to look into it and if the probation officer and the prosecutor are given the option-- opportunity to craft something that is right for that individual. So, I don't think pretrial is a replacement for bail. I don't think it is--I think the two can work together. So, I don't think removing all financial factors from this process is possible or appropriate. At the end of the day, I think you need a combination of things. But the long and short of it, you really do need to maintain that flexibility at the local level and I am sure that some of that will apply to the federal system. I am a freshman, so I am just getting into the federal system. I think there can be some accommodation for both. Ms. Smith, is there anything else that was mentioned that you might want to address? Ms. Smith. Yes. Thank you, sir. I want to address Mr. McElroy. My mother was a foster mother for 21 children along with the eight of her own. So, I understand the foster care program very well. I want to explain that you came from Kentucky. When you were arrested--when he was arrested in Kentucky there was no commercial bail allowed. There still is not. Had there been a commercial bondsman in the area and had you called collect on that phone to the commercial bondsman, we would have worked with your family to secure your release and monitors wouldn't have been held. You wouldn't have been held in jail. We do a very job of releasing people from the jail cell very quickly. We offer payment plans in almost every State in the United States. Illinois is another State that doesn't allow commercial bail. Monetary bail does work. Most of the time it works well when you have a commercial bondsman who will post that bond. To answer your question about a bondsman who threatened. 30-one years and 40 agents later we have never threatened our agent--our defendants or their families. We make sure that they show up. We call them before every court date. I apologize, ma'am. Thank you. Ms. Bass. No, it is okay. Thank you. Ms. Jackson Lee? Ms. Jackson Lee. Thank you so very much and thank you for holding this hearing. Let me try to untangle and unweave, if there is that word, with quotes, this system of bail and, really, label it in the context of chattel, as if you were holding chattel in the old days and bartering and bargaining their coming and going. So, I think in the innovative thinking of what we should be doing on the federal level it is to detangle and disengage from a bail system for this nation. I certainly respect all industries. The bail system is an industry and, certainly, income is generated from it. The question is whether the harm is too great, and that the federal system needs to take charge of this so that it is not this disparate State complex maze that families have to work their way through, and that is the context in which I am going to ask my questions. First, let me read into the record and ask unanimous consent to place an article by Cameron Langford and read exactly these words from Houston, Texas. ``Texas' most populous county unconstitutionally jails poor people charged with misdemeanors only because they cannot afford a pretrial detention system that also violates State law, a federal judge rules. Lead plaintiff Maranda O'Donnell sued Harris County in May 2016 after she was arrested on a misdemeanor charge of driving with an invalid license and a magistrate, in an obscene decision, set her bail at $2,500. O'Donnell, 23, says her detention jeopardized a new restaurant job she was depending on to care for her young daughter. She got out of jail after a few days only by mustering support to get the $2,500.'' So, I would ask unanimous consent for that to be put into the record. [The information follows:] MS. JACKSON LEE FOR THE RECORD ======================================================================= [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Ms. Jackson Lee. The headline says that the federal judge strikes down the Houston area bail system. It is 2019 and we are still in the midst of negotiating that settlement because of the major opposition that occurred on that particular action by the federal court, who was really appalled and just recently held an open hearing for those who are for and against to come and speak about it. So, I think it is clear that this should be handled from the federal level. Let me thank you, Commissioner Rodney Ellis, Judge Hidalgo, and Commissioner Adrian Garcia, who are the cornerstone. Let me ask you, Ms. Siegler, on the question of your point about Congress, this whole idea of a flight risk and this whole idea of--I would probably take issue with only a small minority of defendants to be detained and I think I know your point. How has this issue of dangerousness really biased courts heavily toward ensuring African Americans are not released or they get a very high bail because of stereotypes of our community persons being more dangerous than others? Let me ask this other question so I can get in within the time. I have introduced legislation and intend to be engaged in sort of an omnibus approach to juvenile justice and that is the horrific bail system that Kalief, the young juvenile out of New York that was in Rikers Island that I think is a historic case and remained incarcerated for over a year without even counsel to the--and because of the family's circumstances. It is painful and, of course, ultimately, he lost his life, not incarcerated. So those two points. If you could answer how dangerousness biases the decision in bail systems, and two, the unfair system that deals with juveniles where it is an uneven landscape across America. Ms. Siegler. On the issue of dangerousness and the race connection, in the federal system I don't have the data or the stats specifically for how that works. I do know that our federal system is--the vast majority of defendants are Black and brown, are people of color, and we are detaining so many people--huge numbers of people in drug cases where almost everybody is a person of color. So, -- Ms. Jackson Lee. So, can I go quickly to Mr. Buskey, who has seen cases across the nation, how the element of dangerousness impacts people of color in making determinations about bail? Mr. Buskey. Absolutely, and I think Chair Bass, in her comments this morning, said that bail is often set at 35 percent higher for African Americans for the same offense. What we learn is that in many systems where they are using money bail, even though it itself cannot mitigate a flight-- excuse me, a risk of danger, that judges are using bail to surreptitiously address danger and that is part of why African- American bail amounts are higher. Ms. Jackson Lee. Do you want to comment on the Kalief juvenile bail? Mr. Buskey. Kalief Browder, yes. That is a perfect example. An individual comes in, an offense does not signal any type of dangerousness. The judge sets bail reflexively. This is a very young man, very subject to abuse and worse and Rikers Island, and just severely damaged him coming out, even though he was completely innocent of the charges, and we have to keep that in mind, the sort of trauma that people go through when they are put in prison, especially when they are very young and are placed in that environment. Ms. Bass. Mr. Richmond? Ms. Jackson Lee. Thank you. Mr. Richmond. Thank you, Madam Chair. Look, I will try to go fast. Part of this is trying to understand and coordinate everything people at the table are saying because some of it is inconsistent. I don't know how many of you were actually criminal defense attorneys, but I did that. So, when you talk about, for example, Ms. Cook, you talked about judicial discretion and so did you, Ms. Siegler. I am not a big fan of judicial discretion unfettered. Every elected judge in the country is scared of a Willie Horton moment. So, if you abolish cash bail and now we put more into judicial discretion, Tyrone and Leroy are going to be less likely for a judge to take a chance on them than William or Billy, and so when we see that in the system that is what kind of concerns me. So, Ms. Cook, you quoted Vera, who does risk assessments in my home city. Where do you fall on the risk assessment? Ms. Cook. So the Leadership Conference, as I stated before, issued a statement of concerns around risk assessment and primarily because we found that these tools were being cast as being very objective but, in reality, they reflect the biases within the criminal legal system along race and socio-economic status, and because of that they are extremely limited in being able to forecast or predict the likelihood that someone would be rearrested or fail to appear in the future. It is sorely based on the data that is put in the system. So, garbage in data-- Mr. Richmond. Garbage out. Ms. Cook. --garbage out. Mr. Richmond. Thank you. The system has to be reformed. But, what I don't hear us talking about at the table is if an offense is likely probateable and the person is likely going to receive probation, then they ought not be held at all because the chances are if they plead guilty the next day they would not serve a day in jail. So, I don't hear anyone talking about more of a focus on issuing summonses as opposed to the arrest in the first place. We ought to look at what crimes we should be issuing a flat summons for to appear to court and then anything that is likely probateable it doesn't make sense to risk the incarceration, the collateral damage of just that weekend in jail. So, I would love to talk more about that. Mr. Buskey, ACLU California, what is the status of that? I know all of you supported ending cash bail. There is a referendum now. Where do you all stand on the complete elimination of cash bail? Mr. Buskey. As far as S.B. 10, we opposed S.B. 10 as it was passed that is now before on referendum, is also before the California Supreme Court. We do believe that we have to end cash bail. But, as I said before, we also have to go much farther, and I would echo your concerns about finding ways to automatically take certain kinds of charges out of the detention net and so an increase in diversion, an increase in citations instead of arrests, summonses, would be completely in line with our vision of how to dramatically increase release rates in the country. Mr. Richmond. I think that at some point we have to convene everybody at the table and have a real honest conversation because when you start talking about judicial discretion let me go to the most unpopular thing that people in the criminal justice reform movement talk about, which is the '94 crime bill. People talk about how it led to mass incarceration. They also say in the same breath that diversion is a great program. Diversion was in the '94 crime bill. People talk about how drug courts are a great progressive way now. But that was in the '94 crime bill. What we saw was that judges were unlikely to sentence African-American offenders to drug courts because they were scared of their William Horton moment. Prosecutors were scared to recommend diversion for African- American defendants because they were scared of their Willie Horton moment. So, in a system that has so many judges who are elected, so many have to come up for reaffirmation, that they are scared to take chances on people they don't understand or know or communities they don't come from. I think that if we don't address that part of this, we are going to have a problem, and then it shows up in the cash bail system where you set these really high ones. Real quick, and Ms. Cook, you cite the Kalief case. That was judicial discretion. Because he had a probation hold, the judge would not even let him get a commercial bond, and so holding him on a probation hold or a parole hold on the theft of a backpack defies common sense from the beginning. So, I just want to make sure that I don't believe judicial discretion for the most part the way judges have exercised that may be the answer also because they are scared of things they don't understand and many White judges don't understand young African-American males, the neighborhoods they come from, or the collateral consequences of one day of incarceration. So, I really think--and I want to thank the Chair for bringing us together because I really think we have a lot more conversation to have on this--but the one thing we all agree on is the system as it is now is absolutely broken. Ms. Bass. Thank you. Mr. Reschenthaler? Mr. Reschenthaler. I thank you, Chair, and I appreciate it. I would yield to my friend and colleague from Texas. Mr. Gohmert. Thank you. Mr. McElroy, I sensed in your comment about ``when you were in the majority'' some hostility towards Republicans. I am a little taken aback. I am not sure what you are talking about. If there was a federal law that usurped the State-- Mr. McElroy. Yeah. Yeah. Mr. Gohmert. --parental rights--it terminated parental rights early because here, again, some of you want us to usurp states' rights in State cases, and I know that has been going on for years. We keep taking more and more authority and that is on both sides of the aisle. I have concerns about that. I am curious about your background. You don't go into it in your statement. So, why were you ever taken from your mother to begin with? Mr. McElroy. Yeah. Thank you for-- Ms. Bass. Will the gentleman yield for just one second? Mr. Gohmert. Yeah. Okay. Ms. Bass. The federal law is--it was great intention. We didn't want kids to linger in foster care and so, essentially, the law says is that if you are in foster care for 18 months that parental rights can be terminated, and you can be put up for adoption. So, it was well intended law, but it has had some bad collateral consequences. Mr. Gohmert. I appreciate that, Chair. Mr. McElroy. Yeah, and that policy was solidified here and so when I say that, and I want to make clear my deceased foster mother, Virginia, is a conservative and I say is, but she is deceased. So, it is not a-- Mr. Gohmert. I am curious about your original background. Mr. McElroy. Yeah. Mr. Gohmert. Did you have a father at all in the home? Mr. McElroy. Yeah. So, the policy, specifically, what it did was instead of supporting my 14-year-old mother at the time, by resourcing her, trying to get her through therapy, that is the power that you wield, right. You can make a decision to punish her, to expedite termination of her custody, or you can make a decision to extend the hearing, resource her, and help to support her and undergird her, and that is the same conversation we are having about incarceration. Mr. Gohmert. Did your father provide any help at all to your mother--your 14-year-old mother? Mr. McElroy. So, my father happened to be married at the time. So, there was a wedge in that area. Mr. Gohmert. Yeah. Definitely. Mr. McElroy. I want to really talk about what you can do to contribute because it is the same scenario in terms of people that are coming into incarceration. You were a judge. You sat on that bench. The majority of clients you sat and looked at had been traumatized and that trauma had crystallized, and hurt people hurt people. So, what we are not talking about here is how to redivert funds in incarcerating pretrial people and start to redivert them into resourcing people--substance abuse so that people can be prevented from overdosing. Jails are not safe spaces for drug and alcohol abuse, right. So, really, the pivot is to you-- Mr. Gohmert. Right. That is why I am a big fan of diversion for treatment if people are serious about getting it, and I appreciate your comment. You are not going far enough back. You are talking about jail, and I am wanting to get to the root of the problem, which you don't even recognize the root of the problem being-- Mr. McElroy. So, the root of the problem, we have a vicious legacy of slavery that men were separated from Black children and Black women day in and day out in this state. Mr. Gohmert. --you didn't have a nurturing loving home and you won't recognize that, Mr. McElroy. Mr. McElroy. This building was built off the backs of enslaved Africans. Mr. Gohmert. You want to talk about the problem with jail-- Mr. McElroy. That is the root. If you want to go to the root let us go to 1619. Mr. Gohmert. This is my time, Mr. McElroy. Mr. McElroy. You are asking me a question. Mr. Gohmert. You won't recognize the fact that you have been traumatized. You have been done wrong through jail, but you won't recognize that you-- Mr. McElroy. Traumatized through policies that will not resource clients. Mr. Lieu. [Presiding.] Mr. McElroy, you can answer--let the member ask the question. You can answer it afterwards. Mr. Gohmert. You aren't recognizing what I am pointing to. Yes, you were traumatized. We need to fix jail problems. We need to fix bail problems. I want to get kids back to a place where they have got a loving nurturing home and they don't have to go to foster care--that they have got somebody there they can take-- Mr. McElroy. Red lining kept homes from going to Black families, right. Let us talk about the policies that insulated and created this problem. Mr. Gohmert. You still aren't recognizing the breakdown. Hubert Humphrey talked about it beautifully in 1964. He predicted the problems that we have created with the breakdown of the home, and I still think we got to go back-- Mr. McElroy. It happened well before 1964. Mr. Gohmert. Oh, yeah. It started before that, but he recognized it when others didn't. And my time-- Mr. Lieu. Thank you. Representative Cicilline? Mr. Cicilline. Thank you, Mr. Chairman. I think one of the challenges is all of the kind of racism and injustice and discrimination that exists in our society plays out in the criminal justice system and we are trying to fix a bunch of stuff that has decades of origin, and I think this struggle, as Mr. Richmond said, between judicial discretion and statutory directives is a challenging one because judicial discretion only works so long as you have judges who actually are exercising discretion in an appropriate way. I was a criminal defense lawyer my whole life and so this idea of letting judges have all this discretion, while it sounds great in theory, I think we have to really think about some guardrails and some guidance. So, we have a huge problem here. One in five individuals who are incarcerated are incarcerated awaiting trial. That ought to shock and alarm everyone in this country. It turns the presumption of innocence on its head, and when you look at the number of people who are incarcerated because they simply can't afford to post bail, that means they are in jail because they are poor, period. There is no other--that is also inconsistent with our basic principles of justice and fairness in this country. I think we have a big challenge here and not an easy problem to fix. But, I think we all recognize we have got to do something. I guess my first question is to Ms. Siegler. Is one way to begin to think about this is maybe to reverse the presumption in 3142? You know, we have a release statute that essentially creates a presumption of detention and puts the burden on the accused. So, as a beginning point, maybe if we just eliminated that and said that the presumption is unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any person, the person should be released. In other words, get rid of those set of rebuttable presumptions and then create a category of offenses for which you cannot be detained. Then finally, to the extent that you are going to use any risk assessment, have a mechanism to reveal the economic and racial biases of the assessments so that you can challenge them in a meaningful way, and the example I always use is if I broke a window as a kid my mother would likely call the neighbor and say, David's sorry--can we pay for the window and it be repaired, and a young man of color who had the same experience very likely would have the police called and get a juvenile record, and so it begins. So, I am very worried about risk assessment tools, so I am going to come to you in a moment. But is that something--in 3142 is that a way to start to think about some reforms? Ms. Siegler. Yes. I agree completely with all three of those reforms that you just laid out. Number one, change the initial decision point and give judges discretion rather than just forcing judges to lock people up for certain crimes at the very onset and hold them until a detention hearing. Number two, what you talked about is the presumptions of detention that kick in at the detention hearing. Those were under 3142(e). Those are a serious problem for many reasons, and I think the first problem is they sweep way too broadly. So, when the statute was first enacted, those drug cases made up, like, 18 percent of the federal docket. Now the rise in drug prosecutions means that these presumptions are applying to a huge number of cases. Mr. Cicilline. Yeah. No, I agree. I just want to make sure I can get in a couple more questions, but yeah. The other thing is I think it is an obvious point that I hope everyone who is watching this hearing understands this. Pretrial detention of people who are awaiting trial has a significant impact on your ability to prepare for trial, your ability to locate witnesses, consult easily with your attorney, the impression that the court has of you as an accused person when you come in from the prison or the jail versus come in from the community. Your ability to develop a sentencing program if you, in fact, are convicted and your ability to do work in the community to show what you have done--I mean, there is so much research that shows how you end up being sentenced is directly impacted on whether you are released pretrial or held pretrial. So, it has implications for our system of justice well beyond that individual defendant but just how the whole system works. Ms. Cook, I want to ask you, are there risk assessments that you think are particularly good that take into account appropriately the kind of racial bias and economic bias that exists or are there none or some that are worse that we could at least look at as a guide? Ms. Cook. So, what we have seen and I think what research has shown us is that risk assessment tools are very limited in their ability to account for the racial bias that is sort of baked into the data that the tools are trained on. Mr. Cicilline. Yeah. Ms. Cook. Because of that, you are unable to judge Black or White defendants sort of statistically equally in those tools and so that is hardly impossible. I mean, it is patently impossible. Mr. Cicilline. Yeah. Ms. Cook. You could use the risk assessment tool in the opposite, though-- Mr. Cicilline. Right. Ms. Cook. --to say, hey, what is going to be the impact to the person if they are detained pretrial on their life, on their family, on their housing or jobs that could be used in that regard. Mr. Cicilline. Can I just ask you, Mr. Buskey, one last question? Is it worth thinking about--I know you said about electronics surveillance, but what about the idea if a judge orders detention or whatever rubric we develop that the presumption is that detention occur by way of electronic monitoring absent some finding that it is insufficient to secure the return of that defendant and the safety of the community? So, in other words, kind of put it down, I want to say electronic monitoring is presumptive if it is someone who needs to be in custody because that is a custodial intrusion and absent some evidence that is not sufficient to secure that person's attendance and the safety of the community the court has to impose electronic monitoring and not require the defendant to pay for it. Mr. Lieu. The gentleman's time has expired but you may answer that question. Mr. Buskey. Very quickly. I think, if determined under the appropriate robust procedures and protections and the proper standard of review then we could consider that proposal. The concern would be simply that the use of monitors would spread far beyond the original intent and that is the hard to thing to cabin. Mr. Cicilline. Thank you. I yield back. Thank you, Mr. Chairman. Mr. Lieu. Thank you. I now recognize myself for five minutes. Let me first thank the witnesses for being here. I would like to thank Chair Bass for calling this important hearing and Chairman Nadler for all your important work on this issue. I agree with Congressman Richmond that the pretrial detention system is broken. Right now, we have approximately 450,000 people sitting in jails and prison even though they have not been convicted of anything. That is insane. We need to fix that. The commercial bail system exacerbates that problem. First, it is not rational. I know they used the example that Republican Congressman Steube said in his opening statement where a defendant was able to purchase his freedom by posting a $15,000 bail bond and then he went and killed a law enforcement officer. Yet, there were many poor defendants who cannot post that bail and they are sitting in jail. So, it is actually a more dangerous system when we allow wealthy defendants to purchase their ability to get out of jail and then commit more crimes. Money should have nothing to do with an individual's freedom, period. That is why I was glad to have worked with Republican Senator Rand Paul, Democratic Senator Kamala Harris, and others here in the House to have introduced the bipartisan Pretrial Integrity and Safety Act last term. We are going to reintroduce it this term. It is going to provide grants to local states and jurisdictions to help them with their pretrial detention to move away from money bail. I have also introduced the No Money Bail Act every term I have been here in Congress, and I was also pleased to work with Chair Nadler to secure report language in the fiscal year '20 appropriations bill to ensure that the Bureau of Justice statistics provides better data on the State of our pretrial population. So, I would like to ask Mr. Buskey and Ms. Cook about-- since you all have extensive bail experience about some questions in terms of how, if we are going to provide these grants, and some of the conditions we should put on them. So, would you, first of all, support the following pretrial practices, number one, expanding the use of citations instead of custodial arrests? Ms. Cook. Yes. Mr. Buskey. Yes. Mr. Lieu. All right. Second, would you support and ensure that before imposing pretrial detention or a conditioned release a hearing takes place within 48 hours? Ms. Cook. Yes. Mr. Buskey. Yes. Mr. Lieu. Third, requiring representation by counsel for all defendants prior to any hearing of which a defense liberty may be determined? Ms. Cook. Absolutely. Mr. Buskey. Yes. Mr. Lieu. Then finally, providing that any pretrial release conditions are nonfinancial based on evidence-based practices or only as restrictive as necessary? Ms. Cook. Yes. Mr. Buskey. Yes. Mr. Lieu. So, I will be reintroducing a modified version of the bipartisan Pretrial Integrity and Safety Act based on what we have heard from this hearing. I just want people to look at this issue. We, in Congress, every two years vote over a thousand times and most of those votes we don't get a single phone call, email, fax, or meeting. Members of Congress and most of the American public aren't walking around thinking about bail. We want people to think about bail because it is a massive problem. It is flipping the presumption of innocence on its head, it is irrational, and it is penalizing those who are poor. Studies have shown that the people who cannot afford to purchase their way out of jail are exactly people that cannot sit there for weeks and months on end. They lose their low-paying job. They don't know how to deal with child support. They can't pay their rent. It is a cascading consequence of more and more bad factors, and it completely wrecks their life. So, I look forward to working with all of you as we continue to work on this very difficult issue and it is also a bipartisan issue. The State of Kentucky, largely, has moved away from money bail. Washington, DC, doesn't do money bail. California just put in a new law--we will see how that goes--and other states are looking at it and it is important that we look at what states do. If there are problems we try and fix it, but I think we do have to get resources to various states to make sure they can implement alternative systems that don't continue to penalize the poor. With that, I am going to yield back. Oh, yes, I will yield to Congressman Richmond. Mr. Richmond. Let me just add in a short period of time that we have a hybrid of a risk assessment system in New Orleans. The executive director of that risk assessment makes $350,000 a year because it is grants. I am not opposed to the salary but there is better uses of money and I think that as we look at it we ought to look at maybe how--as we give out grants how local jurisdictions can do it in-house, save that money, because all of the criminal justice system is financed on the backs of defendants through fines and fees and other things, and I think we have to take a holistic approach. So, I would love to work with you on that but I just wanted to point out that the director of my local risk assessment is in the 300s. Mr. Lieu. Thank you. Appreciate that point. You are back and now recognizing Representative Mucarsel- Powell for five minutes. Ms. Mucarsel-Powell. Thank you, Mr. Chairman, and thank you to the witnesses for appearing here this morning. It is obvious that we need to reform the bail system in America. Cash bail seems to be stuck in an old view of the world. I have to tell you that in Miami-Dade County there was a study conducted that showed that the jail averages over 2,000 inmates daily and about 80 percent of those detained were pretrial inmates. These individuals who can't afford to make bail have been jailed before they have had the opportunity to defend themselves in court and, of course, wealthier individuals don't have these issues. So, more importantly, I think that money bail systems have a disproportionately negative impact on minorities and low- income defendants. I represent a district where we are a minority majority district. Most of the people living in my district are Hispanic, African Americans, and I am very well aware how difficult it is when you are sentenced for a petty crime, you are detained, you don't have a trial, and you have no means to get out of jail. Bail for Black men is, on average, 35 percent higher than White men and bail for Latinos is, on average, 19 percent higher. Money bail and pretrial detention often have devastating effects. Even if a defendant is not convicted, pretrial detention throws disadvantaged defendants into a cycle of trauma and hardship that can last for years, which we have heard this morning. It can mean that a defendant loses custody of his or her kids because she can't care for them while awaiting trial. It can mean a person loses his job because he can't get to work while awaiting trial in jail and it means that these defendants often can't find adequate legal representation while awaiting trial in jail. This approach to our criminal justice system only causes harm to our communities and the people that we are trying to represent. We have to reform the bail system in order to uphold equal justice under the law. So, I want to start with Mr. McElroy. You mentioned that a $500 bail set for you was the same as a million dollars for an unemployed homeless teen. Can you explain a little bit what you mean by that and what are some of the hardships that money bail placed on you or other low-income or unemployed defendants? Mr. McElroy. Yes. So, this year I have contributed to bail out about 8,500 people across the Nation in 19 cities. I am reminded of Miss Priscilla, who cried when the judge said $3,500 bail on her, and she is a grandmother, 65 years old, primary custodian of her grandbaby, and she was in jail seven days before we brought her out, and she lost her job. Her granddaughter slept on people's couches. The case was dismissed shortly thereafter and there is no recompense. Nobody said sorry, and this is perpetuated. I am reminded of an LSU student--I am sorry that Mr. Richmond has left--who $3,200--she was accused of stealing two t-shirts from her roommate left over, in the middle of finals. In the middle of finals. Our staff were able to talk with her professors and procure the opportunity for her to complete her finals, and she is a junior at LSU currently. I could go on and on, right. These are human beings that were--my friend mentioned, Ms. Mary, the bail bonds industry would have helped them. The predatory system that takes poor people's money, like Niesha, who I mentioned, who is paying $300 for a case that was dismissed. Did that bail bondsman walk up there and say, oh, your case was dismissed--you don't owe me anymore--here is your $1,500 back? Did the judge put himself in that situation to make sure that she was put back whole? No. So, what are we really talking about? We are talking about human beings that the price of their wallet determines how much justice they get, whether they get to participate in their own case or not. Ms. Mucarsel-Powell. Yeah, and it perpetuates the cycle of poverty in many of our communities and the cycle of injustices and the school to jail pipeline that we see in a lot of our communities. So, I agree with you. Thank you so much for being here today and sharing with us your story. I yield back. Mr. Lieu. Thank you. Before I call on Representative Cohen, I just want to thank you, Mr. McElroy, for the work that the Bail Project does in my district in Venice, California, as well as throughout the country. Representative Cohen, you are recognized for five minutes. Mr. Cohen. Thank you, sir. I hope that these questions have not been asked because I was in Transportation. The federal system is different than most of our states. How does the federal system work in seeing that the percentage of people who return as distinguished from those who flee? Ms. Siegler. How does it work as far as are we doing well? Mr. Cohen. Numbers. Yeah. Exactly. Ms. Siegler. Yeah. The numbers are incredible. I mean, we have 99 percent of people who are released on--this is 2018 numbers--99 percent of people released on bond appear in court and do not flee and, interestingly, that rate holds true whether you are looking at the five federal districts in this country that have really low release rates, around 20 percent, or the five that have really high release rates around 80 percent. So, whether releasing a lot of people or they are releasing very few people, almost nobody is fleeing and the numbers for danger, meaning re-offense, are pretty much identical at 98 percent not re-offending. Mr. Cohen. So, the federal system has no bail bondsmen, right? Ms. Siegler. That is correct, technically. Mr. Cohen. The bail--what do you mean technically? Ms. Siegler. Technically, there is a part of the statute that says a financial condition is not supposed to result in the detention of a person. However, there is the allowance for some bail bonds. There is the allowance for money bail. There is the allowance for paying--for putting up a home as collateral for your release. Mr. Cohen. Yeah, but when I say bail bondsman there is not a professional bail bondsman. So, you put your money up with the court, do you not? Ms. Siegler. In some federal districts there are professional bail bondsmen, yes. Mr. Cohen. Are there? Ms. Siegler. Mostly there are not. But, I have heard of some. Mr. Cohen. Well, they are often lobbying against any of these reforms and I know when I was in the State legislature and the State senate, we had tried to change the system and what they ended up doing was they passed a bond origination fee. Maybe they do that other places, too. But, it was like a basic $35. They said that the low-cost bonds they couldn't do them at 10 percent because I want to say a $250 bond that would be $25 wasn't worth it. So, they put on a $35 bond origination fee to make the smaller bonds more workable and efficient for the bail bondsman. Of course, that makes it $60 for the bond and on a $250 bond that would make it 27 percent or something like that bond. They put that $35 on every bond, even if it was a $10,000. So, it wasn't to make it effective and efficient and merchantable for the bondsman. It turns out it is extra money they put in their pocket, and they lobbied against everything we had, whether it was citations in lieu of arrest in the field or citations in lieu of arrest at the--issued and in jail, arrested. They lobbied against it all and they got it done. Are there any states that are models for reform? Ms. Siegler. On the money bails issue, I would defer to the people who are experts on the State money bail problem. Mr. Cohen. Sure. Mr. McElroy or Mr. Buskey? Mr. McElroy. I would say there are states that are being thoughtful. Oftentimes my state, Kentucky, is mentioned. Kentucky is not a State that doesn't have cash bail. Kentucky is a State that is very dependent on algorithms, and as many people have mentioned, algorithms are only as good as the information that go in them, and I always think about it like this. On any given day if Narcotics wants to do investigations, they can either go to their university or they can go to a low- income community, and we know which one is politically correct. So, when you have absorbent policing surveillance, you are going to have out of those communities higher algorithms that lead to higher risk assessments. Mr. Buskey. In terms of states, I would say that New Jersey is probably the State that is thinking the hardest then and doing the best on these issues. As folks may know, New Jersey had very significant reforms about two years ago to its pretrial system that was largely based on money, huge bail bond industry--many of the same arguments against reform that we are hearing in the current debate. New Jersey today, according to reports from last year, has virtually eliminated cash bail and so cash bail is only entered in I think less than one quarter of 1 percent of cases, right. So, hundreds out of tens of thousands of cases end up in cash bail. They have seen no change in the rates of re-arrest prior to trial. Those still remain less than 1 percent. There was a slight decrease in court appearance from a very, very high 93 percent to a still very, very high 89 to 90 percent reappearance rate. They also found that even with that slight decrease in appearance rates that cases were still completing in the same amount of time. So, despite all the rhetoric from the bail bond industry, even though people may have missed a court date, they were coming back. Finally, I would say they are doing all of this with astronomical release rates at over 95 percent and much of that is since New Jersey dramatically increased noncustodial arrests. So, many of these folks were getting out and I think upwards of about 30,000 people increased over last year are never being booked into jail prior to their first court appearance. So, all of those things are ones that we try to replicate. The one thing that I would point out about New Jersey that does require some caution is that they do use risk assessments to make these determinations and that is the one thing I would think we would want to go back and look through and really determine what role the assessments are playing in deciding detention and release in New Jersey. Mr. Cohen. Thank you. Mr. Lieu. Thank you. The gentleman's time has expired. This concludes today's hearing. I want to thank our--yes, Mr. Gohmert? Mr. Gohmert. Could I ask unanimous consent to submit a letter from Senator Jeff Andrew--from Bob Andrzejczak regarding the vote they had on their bail system? Mr. Lieu. Without objection. [The information follows:] MR. GOHMERT FOR THE RECORD ======================================================================= [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Gohmert. Thank you. Mr. Lieu. So, thank you to our visitors for attending. Thank you all in the audience for being here. All Members will have legislative days to submit additional written questions for the witness or additional materials for the record. Without objection, the hearing is adjourned. [Whereupon, at 11:52 a.m., the Subcommittee was adjourned.] APPENDIX ======================================================================= [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] [all]