    [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:]
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                      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:]
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        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

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        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

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