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Constitutional amendment on bail reform heads to the House

The Government Administration and Elections (GAE) Committee has passed a resolution to amend Connecticut’s constitution to change Connecticut’s bail system, following a favorable bipartisan vote in the Judiciary Committee.

Under the Connecticut Constitution, bail can only be denied in capital offenses, but since Connecticut did away with capital punishment, it currently stands everyone is entitled to bail regardless of the nature of their alleged crime or their history.

According to proponents of the bill, this allows dangerous individuals with access to funds to get out of jail as they await trial but also leaves those who cannot afford bail languishing in jails for lesser offenses.

“Our provisions for bail are somewhat of an aberration among the states and the federal government,” said Government Administrations and Elections co-chair Matt Blumenthal, D-Stamford. “We have a functionally absolute right to bail for anyone accused of a crime.”

“No matter how dangerous the individual is, no matter how much a flight risk, the individual is, no matter how much of a risk to the administration of justice that individual is, that person has a right to bail,” Blumenthal said. “On the flip side, it means that no matter how little a risk the individual is, if the person cannot afford to make bail, they will be subject to pretrial detention.”

Under the terms of the constitutional amendment, the court would be allowed to consider the nature and circumstances of the offense, previous convictions, past record of court appearances, family ties, employment, financial resources, character and mental condition and their potential to reoffend while out of jail when considering the conditions of release.

If the court decides not to impose financial conditions on an individual’s release, the court must impose the least restrictive conditions that “reasonably assure the person’s appearance in court,” including supervision and electronic monitoring, among other conditions.

If approved by voters, the legislature would then create legislation to implement the changes.

The resolution passed out of the Judiciary Committee with two of the legislatures most conservative lawmakers, Rep. Craig Fishbein, R-Wallingford, and Rep. Doug Dubitsky, R-Chaplin, joining with Democrats to forward the bill the House of Representatives. The House referred the resolution to the GAE Committee for approval.

During the Judiciary Committee meeting on March 27, committee co-chair Rep. Steve Stafstrom, D-Bridgeport, said Connecticut’s constitution is currently “outdated” because of its bail provision, not allowing the legislature to make any changes.

“Our system, because of our antiquated constitutional provision, is broken,” Stafstrom said. “There’s not an ability at the high end to hold individuals pretrial who should be held to reasonably assure their appearance in court and to protect public safety. Conversely, we still have far too many folks who are held on low levels of bail for low level crimes which they cannot afford.”

Fishbein noted that under a Supreme Court ruling, bail cannot be punitive and should rather ensure the individual will appear for trial and participate in their own defense.

“I am in support that we need to do something,” Fishbein said, noting that he has heard concerns from constituents and caucus members that authorizing a change to Connecticut’s constitution regarding bail would allow the legislature to effectively eliminate bail entirely, allowing arrested individuals to simply walk free with no guarantee they will return to court.

According to a discussion between Fishbein and Stafstrom, there is currently nothing in Connecticut’s constitution preventing the legislature from doing just that, but Stafstrom said this proposed change would address “the higher end of the spectrum,” by allowing bail to be denied for those accused of serious crimes but with the financial resources to post bail and perhaps evade court.

Sen. John Kissel, R-Enfield, however, said he saw it as a “Pandora’s box,” particularly because he didn’t know how the enabling legislation might take shape.

“I don’t see the pressing need to change it at this time,” Kissel said. “Staring me in the face are places like New York City, not that far away, where it’s all turned upside down.” 

New York revised its bail laws in 2019, eliminating cash bail for many non-violent crimes. Critics have pointed to the change as a cause for spiking crime numbers, which coincided with the pandemic, but data regarding the correlation is mixed at best.

The proposed constitutional change was universally opposed by bail bonds companies who said similar federal changes to bail have resulted in more people being held in detention pre-trial.

“Preventative detention policies have proven to be a mass-incarcerating destruction of civil rights premised on the fact that it is ‘more fair’ than ‘cash bail,’ wrote Jeff Clayton, executive director of the American Bail Coalition, in written testimony that pointed to New Jersey’s change as a prime example of more people being detained pre-trial. “Because we based federal ‘pretrial release’ on predictions of future dangerousness using pretrial risk algorithms, the culture of mass incarceration created by these policies will likely not decrease mass pretrial incarceration but increase it.”

The resolution was also opposed by the Chief States Attorney Division of Criminal Justice, the Chief Public Defender and the ACLU of Connecticut.

The Connecticut Sentencing Commission in 2022 released a report on Connecticut’s pretrial justice system and found that eliminating money bail in states like New Jersey was a “success” and that in 2022, 38 percent of Connecticut’s total incarcerated population were being held pretrial on crimes for which they have not yet been convicted and called for implementing reforms.

The resolution passed in the GAE Committee over opposition from Sen. Rob Sampson, R-Wolcott, and Rep. Gale Mastrofrancesco, R-Wolcott.

Sampson said he was concerned because there was no knowing what legislation could arise from the constitutional change. 

“I got to admit that I’m extremely sympathetic to what is being discussed here, in fact I have proposed similar legislation in the past,” Sampson said, noting that he would support some form of bail reform. “My concern about this, is this being a constitutional amendment, it is not the complete picture, it’s only the framework.”

Sampson argued that the changes made in New York and New Jersey have been more about making a political statement regarding equity, rather than equal protection under the law. “And Connecticut, I’m afraid, is no stranger to political statements by the majority on the subject of crime.”

“I just feel that in order to propose something like this, you have to have those details,” Sampson said. “Almost every year there is another bill that undermines our criminal justice system in Connecticut. And I don’t believe we have a situation in Connecticut where we have too many people being held in prison pretrial or otherwise that are not truly risks to public safety in our state.”

The resolution would have to approved by a three-fourths majority in both the House and Senate in order to be placed on the 2024 ballot, and if it is passed by less than three-fourths, it will return to the General Assembly in 2025 where, if passed by a majority, would appear on the 2026 ballot.

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Marc E. Fitch, Senior Investigative Reporter

Marc E. Fitch

Marc worked as an investigative reporter for Yankee Institute and was a 2014 Robert Novak Journalism Fellow. He previously worked in the field of mental health is the author of several books and novels, along with numerous freelance reporting jobs and publications. Marc has a Master of Fine Arts degree from Western Connecticut State University.

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