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Issue of 'revolving jailhouse door' not as simple as critics suggest

By Michael E. McMaken
Mobile County District Judge
I “take pen in hand” to discuss with you a community issue or concern, which has been extensively discussed, and greatly lamented, of late and that is the "problem of a revolving jail house door." That is not in any way a new concern. The consternation expressed by some fails to consider the substantial number of cases in which bond has been denied, or bonds have already been revoked. I cannot tell you how many such cases there are, however, I am certain they are significant because I know defense lawyers complain to me and my fellow judges about it regularly. 

For the past 25 years I have been honored to serve as a judge in Mobile County. It has been a great privilege even if challenging at times and I have greatly enjoyed working with many fine people over the years. I have been involved in the practice of law since the mid 1970s. I was a prosecutor in two different counties (Tuscaloosa and Mobile) and I was also a Special Assistant Attorney General for the State of Alabama before I went into the private practice of law. Because of that I do appreciate the burdens of both the prosecution and the defense of criminal cases.

At the same time I have also been a victim of crime on about a half dozen occasions during the past thirty years. This unfortunately is not unusual for many of us, including lawyers and judges. It is a fact of life that is troubling and frustrating for everyone. I fully understand that any victim of crime is entitled to feel a sense of outrage and anger. I know I have certainly felt that way.

The question of crime, prosecution, sentencing and bail bonds is difficult to grasp if one does not have a broad view of all the issues. Probably any effort that I make to describe some of the nuances of the problem will fall on deaf ears. I wish I could make this a brief, pithy and compelling statement, however, I cannot possibly state my point in two or three paragraphs. 

It would be improper for me to try to explain what might have happened in any particular case. Canon 3(A)(6) of the Canons of Judicial Ethics provides that “A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his discretion and control.  This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.” 

You can see that this provision prohibits me from discussing any case, especially one that is “in the news.” Over the years there have been many times that I would have liked to comment on a decision or issue, but I could not. However, I am permitted to comment on matters in a general informational sense.

There are basic constitutional provisions that address the right to bail in most cases. The eighth amendment to the United States Constitution provides that
“Excessive bail
shall not be
required …” and
section 17 of
Article One of
the Alabama
provides that
“…all persons
shall, before
conviction, be
bailable by sufficient sureties, except for capital offenses … and that excessive bail shall not, in any case, be required.”

Rule 7 of the Alabama Rules of Criminal Procedure discusses the issue of “release” on an appearance or “bail” bond in criminal cases. It is lengthy and somewhat complicated. Rule 7.2 addresses the issue of the “Right to release on one’s personal recognizance or on bond”. That rule sets out a list of fourteen issues that a court may consider in making a decision about bond.  That rule further discusses ‘’ranges” for bond amounts by categories of cases of varying seriousness and sets out a “Bail Schedule – Recommended Range”. The preset bond schedule about which complaints have been voiced is essentially taken from that “Bail Schedule” with some modifications.

The courts are neither charged with facilitating the prosecution, nor helping in the defense, of criminal cases. On the contrary, the courts are supposed to be the referees. They are the ones wearing the black and white stripes calling fouls and penalties. The courts stand between the government and the citizen to ensure a level playing field and a fair fight. Once the fight is over the courts have a duty to impose a sentence if the defendant is found guilty. Over the years I have found that the cry for justice is often rather weak while the cry for either vengeance or mercy is quite strong.

The “presumption of innocence” exists for a good reason. Not every person charged with a criminal offense is actually guilty. Sometimes things actually do go wrong. Hopefully that is the very rare exception but that is also why there are appellate courts. We are all human and we are all fallible. The absolute truth is that you and I would not have “constitutional rights” if we did not ensure that criminals have the same rights.

When a judge is asked to set a bond, he or she must consider many factors, some of which are extremely elusive. This bond decision is usually at the very beginning of the case. Often the prosecutor has very little information to offer the court regarding the facts. Details about the offense and the offender are critical to these decisions. 

The system is much better than it once was. I can remember in years past when a bond hearing involved only the defendant and the judge.  There was no prosecutor, no Pre Trial Services representative, no criminal history at all and virtually no details of the offense charged.  The bond decision was all too often made essentially in the dark… with only input from the defendant.  That was a very difficult challenge and the judges did not like it at all.  Eventually prosecutors became much more involved but getting current information has always been a problem because the arrest is frequently made at night and paperwork follows behind … sometimes later rather than sooner. 

For over a decade the District Court has actively sought relevant information from law enforcement, at the beginning of a case in order to make an informed decision about bond. To that end a “Law Enforcement Input Form” was created and widely distributed. This form has even been modified and included in a slightly abbreviated form on the jail paperwork that is generated at the time an officer books the defendant into the jail. 

Unfortunately that document is almost never filled in by the arresting officer. This form gives officers an opportunity to include detailed information that is either favorable or unfavorable to the person charged.  It is also an effort to make communication (with the District Attorney and the court) easier for the officers at that early stage of the prosecution. It is very rare that officers appear in court at the time of the bond hearings although it does happen sometimes. Frequently when prosecutors are asked for information about cases at that stage they have nothing to tell the judge. This can often be equally true for a Class C felony or a Class A felony.

Many cases, like "Spring", come in like the "lion" and go out like the proverbial "lamb". A felony prosecution may end up in a misdemeanor plea bargain for a variety of reasons. Some of those reasons can be very compelling. 

Anyone with any experience at all knows that not all Class C (for example) felonies are created equal. A Possession of a Controlled Substance case might be a rock or two of crack cocaine or a couple Lortabs. A Possession of Marijuana First Degree case might be a small baggie amounting to a couple of joints. At the same time those cases could be much more serious. At the time of the bond hearing there is very often no way to tell exactly what is going on in a case.

Often witnesses do not want to come to court for various reasons. Victims can become distracted, or they "get over" being mad or they are "compensated for their loss" by insurance or by the defendant's family or friends. There could be any number of reasons that the case might evaporate.

Domestic cases frequently end because the parties reconciled. Do not ask me why, but that is extremely common.  It is an unfortunate dynamic of domestic violence situations and it probably happens more times than not.

Many times officers or victims just do not show up for a court hearing.  A surprising number of cases are dismissed because the complainant or officer fails to come to the courthouse to even sign the formal complaint against the defendant.  That official “charging instrument” should be signed within 48 hours of an arrest but the judges often allow much more time to comply with that requirement.

Drug prosecutions for smaller quantities are very often plea bargained just so the prosecution can concentrate their efforts on more serious cases. Also, there really are times when cases arise due to "bad searches and seizures". Sometimes the defendant becomes an informant and is rewarded with a lesser charge or a dismissal for helping the prosecution catch a "bigger fish". A substantial number of felony cases are resolved by misdemeanor plea agreements every year in Mobile County at the request of the District Attorney.

All of these issues are well known facts of life in the criminal justice system. A person’s background and character are relevant considerations when setting bond and public safety is always a huge concern.  Nevertheless, nobody can predict the future and we do not live in the environment that prevailed in the Tom Cruise movie, Minority Report. We cannot punish people for crimes they might commit in the future.  Judges and prosecutors are very concerned about those issues, but we work within a system that is not perfect. Our criminal justice system is so much better than many others, but it does not solve every problem.

All of that is well and good and I realize that people want safe streets and safe neighborhoods. Still one cannot really insist on high bonds ... or NO bond ... and then justifiably complain about the high costs of prisons. The county and the Sheriff have to be concerned about the jail population every day. This is a significant expense to the county. The jail census at the Mobile Metro Jail is virtually always above maximum capacity ... frequently by a large amount.  It was that way before the "New Metro Jail" was built and before the jail "Barracks" facility was built ... and it still is that way. "If you build it they (sic) will come." 

It is my understanding that the main part of the Metro Jail is built for 800 prisoners. The much newer Barracks building was built for 325 prisoners. The total jail population as I write this is 1,598 inmates … in a facility for 1,125 prisoners. Of course, that number floats all the time, but that is almost 40 percent above maximum capacity. 

The jail population is so high that the Warden over the years has requested assistance from the courts under special circumstances. He has asked the District Judges to allow defendants arrested on certain minor offenses to sign their bonds during Mardi Gras weekend due to space limitations. He has also asked that certain categories of defendants be allowed to be furloughed when major hurricanes take aim on the port city and there exists a possible need to move the jail population to a location where flooding is not likely. The judges have always cooperated in those situations.

The Mobile County budget for the jail is huge. This year it is just under $21 million. Adding the variable cost of medical care makes for significant problems for the jail and the county. A pregnancy, kidney dialysis, heart surgery, problematic wound care, infectious diseases, MRSA and/or staph complications can raise the ante substantially. One full blown Aids patient can “break the bank”, so to speak. It is not unusual for the jail medical staff to request that a judge release a prisoner due to some very expensive, or very dangerous, medical complication.

Consider our local budgets. Mobile County’s budget is just under 177 million dollars. The City of Mobile’s budget is $216 million. Saraland’s budget is $15 million. Satsuma’s budget is $5 million. Chickasaw’s budget is $4.5 million. The jail budget is as big as those last three cities together. The state corrections budget is almost as much as the city and county of Mobile together. These figures are staggering.

In years past the “old jail” was quite dreary and even more overcrowded. It was truly dungeon-like in some cells. That longstanding situation precipitated a federal lawsuit (around 1979 or 1980) alleging various conditions that were "cruel and unusual punishment".  If you were ever in that facility you cannot forget the images, sounds or very “distinct aroma”. It was truly quite dreadful. That lawsuit resulted in a federal court order imposing daily fines (I want to say it was $10,000 per day) if the population was not reduced to specified levels. 

The total of the fines ultimately reached several million dollars against the county and it resulted in the agreement to make substantial changes and the building of the first part of the “new jail”. When that happened the federal court remitted the fines. All of that litigation and the resulting negotiations took quite a few years before the changes were made … and even more jail space has been added in the years since.

That pressure on the county and the Sheriff's Department also resulted in the creation of a "standard bail bond schedule" (the “preset bonds” about which so much has been said lately) for the "garden variety offenses" that comprise the majority of cases that flow through the criminal justice system. The explicit purpose of this schedule was to help to relieve the pressure on the jail. 

At the same time the concept of Pre Trial Services was discussed and put in place to provide that someone would look at the jail population every day to find defendants who have bonds on less serious charges but who are for some reason unable to make the minimal bond on their case.  The objective was to get them out of jail to reduce the cost to the County in terms of jail expense and to avoid the large fines that would be incurred if the jail census was not held to the maximum level established by the federal court.  These defendants are generally those who are charged with cases that are expected to result in probation sentences and not jail sentences. 

The magnitude of the pressure created by that federal lawsuit has essentially been forgotten.  By way of comparison, consider the recent US Supreme Court order regarding the California prison system overcrowding lawsuit. I am certain that you are familiar with the case of Brown, Governor of California vs. Plata, U.S. Supreme Court, 09-1233 (May 23, 2011).  This is the case where California’s corrections system was sued for unconstitutional conditions due to overcrowding. That case stated that the California system was designed to hold 80,000 prisoners but actually had perhaps twice that amount. California must devise a solution to that overcrowding problem or release more than 30,000 prisoners to get down to 137 percent of maximum capacity. 

What havoc would such an order create in Alabama?  I submit that is one of the factors that motivated the package of bills (about sentencing and punishments) that failed to pass in the recent legislative session in Montgomery. Again, prisoners/criminals just do not have a good lobby. Legislators just do not want to pass legislation to release prisoners.

The amount of effort and energy that has been devoted to changing the way sentences are imposed has been incredible. That includes sentencing guidelines, alternative sentencing programs, jail diversion programs, work release, probation, parole, jail credit, drug courts, and many other programs. This is all because the Alabama prisons are so full and so expensive to maintain. 

There are about 30,000 prisoners in Alabama prisons. This is difficult for me to calculate exactly. One source cites 30,440 prisoners while another quotes 25,320 prisoners. Either way that is a lot of prisoners in facilities that I believe were designed for 13,403 prisoners. The DOC has had to put beds in every space possible. We may not be quite at double our capacity but we are close.

The State of Alabama has a general fund budget of about 1.5 billion dollars. Of that total about 339.4 million dollars is devoted to the Department of Corrections. Our state's per capita prison population is very high. If I have the numbers right, “corrections” accounts for over 20 percent of our entire state General Fund budget.  That is one dollar out of every five.  When the State feels pressure to reduce the prison census the pressure is pushed down to the local level and state prisoners sit longer in county jails… and the counties pay for that expense.

I am certain you recall the effort that went into increasing local taxes by just a few mills for our schools here in Mobile County. That was essential to the appropriate funding of local education. Education is critical to a community’s health and prosperity and still that small tax increase was a very hard sell. Can you imagine any community doing that to fund the Department of Corrections or the Metro Jail? Prisoners just do not have a good lobby or grass roots political system.

Our high school dropout rate is astonishing. This fact is evident in the quality of reading, writing and general communication skills that one sees in the court system. People have such a short horizon when their education is neglected. Their ability to get and obtain a decent paying job is greatly diminished.  People everywhere are struggling due to our weak economy. People without an education have a very steep hill to climb. 

Adequately funding even the most important and the most popular agencies is difficult. Drug courts around the state try to help divert people from prison by providing much needed treatment. While treatment is expensive it is not nearly as expensive as prison space. The latest general fund budget allocated 3.5 million dollars to drug courts and this is just a small part of what is needed to treat our very serious drug issues.

By way of example I also want to point out that the Unified Judicial System (the state trial courts) budget was cut by 20 percent this year. In Mobile County alone the court clerk’s office is about to lose 21 more employees because of this. The tragedy of that is especially sad for those 21 hard working court employees and their families. They will feel serious consequences as a result of that budget reduction. Those of us who are left to do the court’s business will miss them greatly. 

The flow of cases and paperwork will slow down.  The public will see an immediate effect on the delivery of services. We do not yet know the full impact of that loss on how we will continue to do business.  A number of jury trial weeks have already been canceled in the Circuit Court to make adjustments.  Arrests will not stop and the delay of jury trials will inevitably cause an increase in the jail population.  The District Court alone will still have between 70,000 and 80,000 cases every year and the public will still expect access to the courts.  It is a discouraging prospect to all of us.

The cause and effect of the budget cuts is not always obvious, but people everywhere are struggling in this economy. To draw another analogy, consider the flooding resulting from increased rainfall and mountain snow melting.  We have seen towns all over our country inundated lately, and at this very moment, by the water flowing downstream. That is what our jails and prisons will look like if we set higher bonds or deny bond entirely. Crime is like rust … it never sleeps. Where will the truly dangerous offenders be imprisoned if there is no more jail space?

There is no easy solution to this problem. The public deserves to know the entire story. Hard decisions need to be made. Predictions for next year’s general fund budget are not any better than this year. It may be worse. In the meantime the court system will have to press on no matter what the circumstances.  

The judges will have to continue to make hard decisions about bonds, bond revocations, sentences and probation revocations as part of the daily business of the courts. The issue of public safety will continue to weigh heavily on prosecutors and judges, because we all have children, spouses, parents, extended family and friends living in our community. 

The well-being of our entire community is a serious matter to all the judges. I am sure that we all worry about the people we love while at the same time we must honor our oaths of office to protect the Constitutions and uphold the laws of the State of Alabama.
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