Lawyer: Racial disparities likely despite bail reform

HARTFORD — While it might sound good at first, Connecticut’s Chief Public Defender warns that a proposal intended to address racial disparities in pretrial incarcerations might hurt the very people it’s trying to help.

The state Sentencing Commission is suggesting eliminating cash bail.

“It might be a surprise to know that our division has not jumped on board with this with both feet,” Christine Rapillo said during a panel discussion at the commission’s day-long symposium on racial disparities in the state’s criminal justice system on Friday.

“Towards Equal Protection Under Law” focused on how disparities could be eliminated at various points in the criminal justice system, from policing during car stops to the proposal to end cash bail in favor of preventive detention hearings which decide if a person can be released without putting up any money.

The state’s inmate population is down by about a third compared to 20 years ago, officials said. But the number of people incarcerated during their pretrial proceedings has remained fairly steady at over 3,000 – until this year, Rapillo said.

“The pretrial population has dropped 14 percent from 2018 to 2019 to below 3,000 people for the first time in decades,” said Rapillo who attributed the decrease to additional services to help people get, and stay, out of jail. She said she’d like to see more of those service programs rather than the elimination of cash bail.

The elimination of cash bond proposal is intended to allow more people who are predominantly poor and of color, to remain out of jail while their cases are pending, according to retired Judge John Silbert, who moderated the panel.

Silbert said that about 500 of the nearly 3,000 people being held during pretrial proceedings are there for misdemeanor charges.

The goal, Silbert said, was to craft a proposal that would gain the support of the state’s entire criminal justice system, including prosecutors.

The commission is considering how to implement the plan, including a requirement that people face a preventive detention hearing to determine if they pose a risk requiring incarceration rather than remaining free without cash bail.

The plan will likely be part of the package of legislative proposals put forth when the General Assembly convenes in early February.

But Rapillo pointed out that her agency, which represents indigent defendants charged with a crime, is not on board with the plan since the preventive detention aspect could lead to unintended consequences including more people of color being detained and more people of color pleading guilty to charges just to get out.

“It is very difficult, if not impossible, to have an assessment tool that is truly race-neutral,” she said. The criteria that are used to assess risk do adversely impact the poor, people who live in certain zip codes and those with criminal records who may have been charged simply because of the way policing is done in their area, she said.

By taking away cash bail, state leaders would be taking away the possibility for some people to get out and continue with their lives, their work and maintain housing while their case works its way through the court system, Rapillo said.

Rapillo agreed with advocates of the plan who said it’s easier for those who are not incarcerated to defend their case than people who are being held. But she’s concerned that the proposal will not “have a significant impact on our poor clients and will not assist in their ability to be at liberty while their case is being processed.”

“By setting a money bond you still have the possibility that someone can still get out,” she said.

It costs $120 a day to keep a person incarcerated, said panelist Isabel Blank, senior manager of external affairs for the Yankee Institute. “That’s a waste of money in our eyes,” Blank said. “People are not being productive members of society when they are incarcerated.”

The Yankee Institute is primarily known for its work scrutinizing programs and tax initiatives for potential taxpayer savings. But Blank said they also support policies that help people pursue freedoms, including freedom through economic status.

Deputy Chief State’s Attorney Kevin Lawlor said prosecutors aren’t necessarily against the plan. “We understand the seriousness of this issue. This is not something that we are diametrically opposed to in any way, shape or form,” he said.

Lawlor’s office, which represents the interests of Connecticut’s 13 state’s attorney’s offices, is looking for a system to determine bail that is “fundamentally fair” that also considers public protection and can assure people’s appearance in court, he said.

Lawlor also questioned the preventive detention aspect, asking whether there would be actual hearings that would involve testimony. “What would be the level of proof required?” Lawlor said. “Would there be testimony? For domestic violence victims, it’s hard enough to get people to complete a police report statement let alone testimony.”