Op-Ed: Montgomery Court Order Handcuffed Judges

Through, Greg Glod, Americans for Prosperity

The detention of people who have not been convicted of a crime and who do not pose a threat to public safety is a major problem in our criminal justice system. But we cannot really remedy this unless the judges have the discretion to ensure our safety and the protection of our rights.

Case in point, Montgomery County, AL, District Court Judge Johnny Hardwick lately signed an order Removal of security deposit requiredand other conditions of release before trial for persons charged with certain criminal charges. Although well-intentioned, Hardwick’s order would have unintended consequences for public safety. Instead of this one-size-fits-all approach that handcuffs judicial discretion, Montgomery should do so consider more discretionary policies that have been shown to reduce unnecessary incarceration without compromising public safety.

Judge Hardwick’s order specifically requires Montgomery County judges to release individuals without bail or increased non-financial release conditions if they are charged with certain traffic offenses (DUI is an exception), misdemeanor offenses, Class D or C felonies, or certain “non-violent” crimes. Class B crimes such as theft of first-degree lost property.

The aim of this policy is noble: individuals should not be deprived of their liberty simply because they cannot afford bail. In US v Salerno (1987), former Chief Justice of the Supreme Court William Rehnquist wrote: “In our society Freedom is the norm, and detention before or without trial is the carefully limited exception.” Those words represent a core principle of our nation’s legal system. Unfortunately, today this principle is routinely ignored as many citizens are deprived of their liberty without any reasonable justification.

Nationwide there are approx 445,000 currently imprisoned individuals who have not been convicted of a criminal offence. Many pose a danger to the community and should be kept off the streets. But others are there simply because they can’t afford a small deposit. Meanwhile, those who have the means can essentially buy their freedom, regardless of the risk they pose to the public.

This two-tier system endangers public safety. Not only that, it leaves taxpayers with the significant cost of incarcerating people who pose little to no threat to them — money that could be better spent on preventing and solving violent crime.

Hardwick’s order will certainly reduce the number of people in prison who do not need to be there before the trial. Crucially, however, there are no cases where judges should have the discretion to enforce bail or other conditions of release.

What if a person charged with a “nonviolent” felony or misdemeanor has failed to show up for court appearances in the past? What if the person has a long criminal record that includes violent crimes and more stringent release terms would be appropriate? What if the person is homeless, has a mental illness, or has an addiction, but the judge cannot order specific treatment or services at that critical moment?

A blanket ban on bail and other release conditions makes it difficult for the justice system to balance fairness and security. As is all too often the case, the Montgomery County investigative system needed a scalpel, but Judge Hardwick handed him a machete.

The Alabama Supreme Court issued a temporary break in implementing this arrangement. Stakeholders should take this opportunity to come together to make changes that more appropriately balance the interests of public safety, individual liberty, and redress.

One such solution is to amend the Alabama constitution to allow judges more discretion to arrest someone who poses a high risk to the safety of the community. Currently, judges can only arrest people charged with certain types of murder at the highest level (known as capital offenses). In any other case, the judges must offer an option of bail or release them without bail.

Alabamaans don’t typically look to New Jersey for politics inspiration, and with good reason. But the Garden State introduced an objective, evidence-based risk tool that looks at factors beyond current offenses to help judges make their pretrial decisions — and it’s worked. Data shows that the higher a person’s risk the more likely they will be arrested. Additionally the Annual report to the governor and the legislature (2020) shows that the rates of no-shows and new offenses committed by those released have remained relatively the same compared to the years before the instrument was introduced in 2017 – although significantly more people are released to court. Alabama should also take a leadership role on this issue and pave the way for reforms in other like-minded states.

At the local level, Montgomery County should limit the scope of its mandate and allow bail or other non-financial release conditionsns in other circumstances, particularly for the offenses covered by Judge Hardwick’s order. Harris County, Texas, was forced to make similar changes to Montgomery County after being sued for misdemeanor bail. However, these changes applied only to misdemeanor offenses, allowed judges to introduce non-financial discharge conditions such as treatment, ankle monitors, etc., and made major exceptions for more serious offenses and people arrested during pretrial discharge or in community supervision. There is no evidence that crime has increased since the new practices were introduced.

The public not only deserves a fairer criminal justice system that protects individual liberties and due process, but also a system that helps keep our communities safe. Current practices fail at both. I commend Montgomery for attempting to address this issue, but policymakers need to look at the evidence and learn from states and localities that have been able to balance those interests more successfully and effectively than with this arrangement.

Greg Glod is an Americans for Prosperity fellow focused on public safety and criminal justice reform.