March 22, 2019
Dear Colleague:
I am writing to make you aware of the recent debate in the House Criminal Justice Subcommittee on the amendment to House Bill 1131, the text of which can be found here. While Section 2 of the amendment does nothing more than make explicit the authority that members of the Judiciary would have to order the use of monitoring devices, Section 1 presents an attack on the discretion of magistrates and judges to decide the conditions of a defendant’s release.
Section 1 of the amendment would require magistrates to document in writing the reasons why a particular defendant was not released on his or her own recognizance, or on an unsecured bond. The stated reason behind the bill is to “gain some understanding and some edification” into the increasing rate of pretrial detention over the last 15 years1. If that were truly the case, then the bill would be asking for all the relevant information, and not placing a burden on magistrates and judges to justify why a criminal defendant was not immediately released back on the streets.
HB1131 appears to assume that the magistrates and judges are abusing their discretion when they set conditions on a defendant’s release. While, on the surface, the increase in pretrial detention may be shocking, there may be a valid reason for that detention. There has not been a comprehensive review of why defendants are in jail awaiting trial. Until this “why” is addressed, the members of the legislature should not assume that magistrates and judges have somehow failed in their statutory duty.
In order to answer that question, a comprehensive review of our criminal justice system is needed, with representatives from all levels of the judiciary providing input, as well as other stakeholders in our criminal justice system. This would allow the legislature to actually gather the information necessary to determine if there is a problem, and determine what next steps are needed. For that reason, we should urge our lawmakers to vote “no” on HB1131 as amended.
1The number of pretrial detainees has increased as a share of local jail population, from almost 39% to 51% in 15 years, a dramatic 32% increase over that time. Based upon the annual reports filed by the administrative office of the courts, criminal case filings have exploded nearly 42% in that same period, with the most dramatic change occurring in FY 2003-2004.