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House GOP Cries Foul on Potential Cash Bail Expansion

Connecticut House Republicans are calling for the Judiciary Committee to hold a public hearing on a proposed amendment to state regulations that would expand cash bail, contending it is required by state statute.

On January 13, 2023 the Connecticut Sentencing Commission sent a letter to the Rules Committee of the Superior Court recommending a revision to Rule 38-8 of the Connecticut Practice Book that would expand cash bail.

The Connecticut Practice Book contains rules of professional conduct for attorneys, the code of judicial conduct, Superior Court rules, and rules for appellate procedure. Rule 38 pertains to rules relating to pretrial release. More specifically, section 8 establishes that, unless otherwise ordered by a judge “10 percent cash bail shall be automatically available for surety bonds not exceeding $20,000.” For amounts over $20,000 10 percent cash bail can be granted by a judge.

When an individual accused of a crime, or someone acting on their behalf, deposits 10 percent of their bail amount in cash, they are released on bail as if they had paid the full amount.

The Sentencing Commission is recommending two changes to Rule 38-8 as currently written. First, they are recommending the 10 percent cash bail option be lowered to seven percent. Second, they are recommending increasing the bond amount for which the cash bail option is available to $50,000. The changes would not only mean that defendants with higher bonds would be eligible for the cash bail option but would also lower the amount of money a defendant would need to provide to be released on bail.

The proposed changes would not lower bail requirements for defendants waiting to be tried.

According to Alex Tsarkov, executive director the Sentencing Commission, the proposed rules also would not reduce the actual amount of money defendants need to be pay to be released.

“Under the current court rules, if a bond is set at $15,000 (just to give an example), defendants have a choice of posting with a surety or ten percent cash bond with the court. Going with surety will always be less than 10% of the bond, in fact less than 7% because bail bondsmen can do payment plans. The proposed rule only affects ten percent cash bonds where defendants can get their money back if they show up to court. It doesn’t affect what sureties can charge, so it doesn’t actually reduce the amount that people need to pay in order to be released.” said Tsarkov.

The proposals were discussed during a May 8, 2023 meeting and public hearing of the Rules Committee.  During that meeting, the committee voted unanimously to submit to the judges for a vote on adopting Practice Book revisions recommended by the committee and published in the April 25, 2023 edition of the Connecticut Law Journal. Among those recommended revisions were the two changes to cash bail suggested by the Sentencing Commission.

The move led House Republicans to call on May 19 for the legislature’s Joint Committee on Judiciary to hold a public hearing on the proposed amendments.

“This is no small change, and it carries considerable public safety implications for Connecticut residents—victims in particular.” said House Republican Leader Rep. Vincent Candelora, R-North Branford, via press release. “With that in mind, we believe it’s not only imperative for the General Assembly’s Judiciary Committee to hold a public hearing, we contend it’s required.”

Rep. Craig Fishbein, R-Wallingford, cited Connecticut General Statute 51-14b, which states, “All statutes relating to pleading, practice and procedure in existence on July 1, 1957, shall be deemed to be rules of court and shall remain in effect as such only until modified, superseded or suspended by rules adopted and promulgated by the judges of the Supreme Court or the Superior Court pursuant to the provisions of this section. The Chief Justice shall report any such rules to the General Assembly for study at the beginning of each regular session.”

Rules are then to be referred by either the speaker of the House or Senate president to the judiciary committee for consideration. If the rules are disapproved by resolution in the General Assembly, they are void.

“State statute is clear. The rule making process is not discretionary. The public has a right to speak directly with their elected officials, and those officials have the right to debate and vote on any such rules so that everyone in the judicial system—defendants, victims, bondsmen, practitioners, and court employees—understands the expectations and limits.” said Fishbein.

Candelora also offered testimony in opposition to the proposed changes during the May 8 public hearing. “Decreasing the cash bail threshold to seven percent on surety bonds not exceeding fifty thousand dollars further restricts the ability of a court to make an independent determination as to what constitutes a reasonable bail amount necessary to protect public safety, the integrity of the judicial system, and to ensure that the defendants actually appear before the court. I fear this policy will result in more repeat offenders being allowed to continue their criminal activity.” Candelora said.

Responding to a request for comment, Candelora said that the Practice book “specifically recognizes” public safety as a consideration when bail is set and claimed the proposal would allow a defendant to pay an “even smaller percentage of even bigger bonds.” According to Candelora, this “erodes the importance of that fundamental aspect of our system.”

“Criminals today understand that the state, which now allows many ‘small’ bonds to be paid directly to the court rather than through a bondsman, makes little attempt to track down defendants who fail to show up to court let alone collect the balance of the bond. Consequently, defendants can make a simple financial decision—bail themselves out, skip the cost that comes with hiring an attorney, and blow off scheduled court appearances. This change doesn’t benefit anyone but criminals, who will have a path to break the law over and over until they’re caught again.” Candelora concluded.

The 10 percent cash bail option became available in 2020. Prior to that, automatic cash bail was only available at a defendant’s arraignment and relied on a grant from a judge. The Sentencing Commission sent a letter to the Rules Committee in January 2019 recommending an amendment to the Practice Book that would allow for the 10 percent cash bail option. During a May 13, 2019 meeting of the Rules Committee, and following a public hearing on the proposal, the committee voted to submit the proposed changes to the judges for a vote. They took effect on January 1, 2020.

According to data compiled by the Sentencing Commission in a 2022 report on pretrial justice, cash bail—which became available around the same time COVID-19 impacted the justice system—by July and August 2021 one in four defendants released from custody at a police station used the ten percent bail option. During the same period of time, the use of bail bondsmen, or professional sureties, at police departments dropped, from roughly 40 percent of police department releases in 2019, to roughly 20 percent in 2020 and 2021.

The commission also notes that use of the ten percent bail bond option has been utilized most by defendants with smaller bond amounts. ” In 2021, for bonds under $5,000, more individuals were released through the 10 percent option than through [bail bondsmen]. For releases on bonds of $1,000 or less, over 80% of individuals used the 10 percent option. By contrast, professional sureties still constituted most releases on bonds between $5,000 and $20,000.” the commission wrote.

Tsarkov also added that bail “is not meant as a punishment,” which the Supreme Court has been clear about. “It could be set for purposes of assuring court appearance and public safety. This proposal is geared towards helping indigent defendants who are compliant with showing up to court to get their money back in the end of the case. Most people with a bond go through a bail bondsman and the fee goes to the bond industry. The difference with 10 percent cash bond, is when the case is done, they get it back.” Tsarkov continued.

According to Tsarkov, ten percent cash bail is another option available to defendants.

“It does not preclude defendants from utilizing bail bondsmen who will always charge less for defendants’ release. If we are worried about public safety, we would recognize that Connecticut does not have a purposeful pretrial detention mechanism,” Tsarkov continued. He also pointed out, due to the state’s constitutional bail provision, judges cannot deny bail no matter how high-risk they might be considered.

“If high risk defendants with high bonds have the means to post their bond, they’re being released through the bail bondsmen. So, we have similarly situated defendants in terms of their risk, charge and even bond amount getting different outcomes of pretrial release and detention based on how much money they can put together. That’s the real public safety issue, and those are discussions that are happening at the General Assembly this session that would require constitutional and statutory changes.” Tsarkov concluded.

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Katherine Revello

An advocate for transparency and accountability, Katherine has over a decade of experience covering government. She has degrees in journalism and political science from the University of Maine and her work has appeared in Reason, The Huffington Post, The Washington Examiner, and other publications.

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