[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                     
          
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                       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:]
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    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:]
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    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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