The Green Mountain State holds the line on judicial discretion and the elimination of bail – with strong support from the State’s Attorneys and Vermont Sheriffs to maintain public safety.
May 11 2018
The ACLU of Vermont recently called on the Vermont Senate to stop listening to the Vermont Department of State’s Attorneys and Sheriffs across Vermont who urged the Senate to reject language contained in House Bill 728 – which would have largely eliminated bail in misdemeanor cases and created a right to an affordable bail in the State of Vermont. The ACLU said, absent any change in position by the Senate, the legislation would be turned into an “empty promise” that would result in the continued incarceration of persons “solely because they cannot afford bail.”
Of course, imprisoning someone for the “sole” reason that they cannot afford bail is both not the case and a situation for which there is already adequate remedy. Defendants in jail, unlike like those who are jailed post-conviction, are there for more than the “sole” reason they cannot afford bail. In fact, the State has established probable cause that they have committed a crime, and a duly authorized executive branch official has come to the conclusion that at an arrest is necessary. The Eighth Amendment and the Vermont Constitution then offer the accused additional rights—that is to argue that the bail is excessive, and inquiry that cannot occur without consideration of a defendant’s financial resources.
The Senate of course rejected the ACLU’s analysis and instead modified House Bill 728 to eliminate the right to an affordable bail – which follows the lead of the recent U.S. Court of Appeals 5th Circuit ruling in the landmark bail case, ODonnell v. Harris County, which held that “bail is not purely defined by what the detainee can afford.” The Senate also followed the lead of the 5th Circuit ruling by requiring swift bail reviews – a win for due process and perhaps to avoid costly litigation that has been witnessed in jurisdictions in Texas, such as Harris County and Gavelston County.
To compound the problem, the House version of House Bill 728 weakened accountability by prohibiting the imposition of bail for those who violated their conditions of release. It is one thing to say that a poor person should get a break, it is quite another to say that all persons, rich and poor, can thumb their nose at the system while they are on bail, and that Judges then could do nothing but hand them a “get out of jail free card” and send them on their merry way.
The Senate rejected the prohibition of bail when someone violated their terms and conditions of release. In written testimony submitted to the House Judiciary, Policy Director Cara Cookson of the Vermont Center for Crime Victims Services wrote:
“…when I talk to prosecutors, victim advocates, and most importantly— victims and survivors—about their concerns with the criminal justice system, I continually hear about defendants released into the community who continue to re-offend or violate conditions of release without recourse.”
“Courts should retain discretion to issue bail in cases where the Defendant has violated conditions of release.”
Further, the Senate got rid of the elimination of bail in all misdemeanor cases, and instead crafted an extremely limited provision where Judges in Vermont can only impose bail in an amount not to exceed $200 where the offense is eligible for expungement. Those offenses eligible for expungement are extremely low-level, and do not include charges like burglary, violation of a protection order, and most other higher-level misdemeanor crimes.
As activist groups continue to point out that their movement is gaining momentum and surging, Vermont serves as the latest example that legislatures are taking a more measured approach and rejecting the no-money bail movement by creating from thin air a right to an affordable bail in this country.
Legislatures like Vermont are generally looking at more meaningful changes, like expanding due process, i.e., making sure Judges consider financial ability in the setting and review of bail, and looking at issues like nuisance crimes where jails are used more as a temporary holding facility for those with mental health, substance abuse, or co-occurring disorders.
As the Vermont legislature slams the door shut on the ACLU’s efforts to eliminate bail in Vermont, we have to wonder: which State will be the next State to come to the same conclusion as Vermont and many others this spring.