[V]ermont Attorney General TJ Donovan urged lawmakers Wednesday to reform the state’s bail statutes, saying poor Vermonters were unfairly in jail and often took plea bargains just to get out.
The state’s top law enforcement officer made the push at a news conference where a key senator called for all of Vermont’s out-of-state prisoners to be brought home soon and the head of a civil rights group made a dramatic demand for Vermont’s prison population to be cut in half.
Among the recommendations Donovan made on bail reform were to cap the amount for certain nonviolent misdemeanor crimes, which he said would allow more lower-income people a chance to be released before trial.
He also said caps on bail for certain offenses would provide uniformity, instead of the current system where judges have great discretion. Donovan said judges should also be considering a defendant’s ability to pay when setting an amount and that home detention pending trial should be the first route for people accused of nonviolent offenses.
“The fact of the matter is: If you’re poor, you stay in jail; if you have money, you get bailed out. That creates two separate systems of justice — those with money, those without money,” Donovan said. The point of a “nominal” bail in low-level cases is to encourage a defendant to show up in court, he said, not public safety.
The way bail discriminates against lower-income people, Donovan said, has “marginalized an entire subset of our community in the name of public safety,” particularly people of color, who make up a disproportionate share of the prison population. He also said bail reform could save millions of taxpayer dollars.
“This is something we need to talk about,” he said, with about 15 lawmakers and others behind him.
The chairs of the House and Senate Judiciary committees stood with Donovan and said they would push bail reform this session. The leaders said they were trying to figure out which chamber would take up the issue first.
At the same event, Senate Judiciary Chair Dick Sears, D-Bennington, said he wanted all the roughly 250 Vermont prisoners who are being held out of state to be brought back to Vermont facilities “in the near future.”
ACLU Executive Director James Lyall cited statistics showing the U.S. with the highest incarceration in the world. About 22 percent of the world’s prisoners are in the U.S., which has less than 5 percent of the world’s population.
Lyall’s call came moments after Sears and Donovan had highlighted a drop of about 500 in the Vermont prisoner count over the last decade. The current population is about 1,600 incarcerated in Vermont and the roughly 250 in Pennsylvania. Donovan embraced reducing the number of prisoners in Vermont when asked if he thought Lyall’s call was realistic.
Bail reform would affect the 350 to 400 people who are detained awaiting trial, Donovan said. Statistics show those held as little as 72 hours have higher recidivism rates than those immediately released, he said. The detainee population is significant, he said, making up 20 percent of the total prison population.
Donovan emphasized protection of the public and said bail laws had been used effectively to keep violent suspects behind bars in serious felonies. The bail reform efforts he spoke of would involve misdemeanors and nonviolent crimes.
A former prosecutor in Chittenden County, Donovan said some people accused of crimes took plea bargains in part to be released.
Defender General Matthew Valerio — whom Donovan had singled out for praise at the news conference — went a step further, saying some defendants took plea bargains and admitted to crimes they did not commit in order to get out.
Valerio agreed that having uniformity in the amounts judges throughout the state could set for bail was crucial.
“We don’t have bad bail laws,” Valerio said after the event, “but you can literally follow the culture, you can identify the culture of a given county by following a given judge.”
Prosecutors typically make requests for different amounts of bail, “so if a judge goes from Windsor County where (State’s Attorney) Dave Cahill is and then goes down to Bennington County, that same judge is going to impose bail on cases in Bennington County that he’d never impose in Windsor County,” Valerio said.
The difficulty of lower-income people making bail was so prevalent, Valerio said, that his office created a special unit to appeal bail cases and won “95 percent of them,” with the court either ordering a new hearing or scrapping the bail altogether.
“What goes on in the trenches is very different than what goes on in the upper levels of policymaking,” Valerio said.
While Sears touted the drop in prisoners in the past five years, Lyall noted the longer-term trend of rates of incarcerated going up dramatically during the 1990s and 2000s.
Donovan said “political rhetoric” and political leaders trying to be “tough on crime” accounted for the higher prison rates nationally.
He spoke of providing opportunity to those accused and said the state could save significant amounts of money if fewer were held.
The Department of Corrections budget is about $150 million a year. It costs about $60,000 a year to house a male inmate and about $80,000 a year for a female inmate, Donovan said.
The first-term attorney general called on legislators to make a small but significant change in the statutes, having bail set to “risk of flight” and not to prevent non-appearance in court.
Rep. Maxine Grad, D-Moretown, chair of the House Judiciary Committee, cited an example of a defendant who got in legal trouble when he failed to appear because he went to the wrong courthouse.
Cahill said legislators should consider having all criminal records for low-level charges expunged after 10 years without further legal trouble. He cast expungement as a financial gap issue as well, saying those with money knew how to get their records scrubbed while those without means couldn’t. Cahill said the system should be automatic.