Alabama law enforcement are already empowered to release without arrest. How many do it?

We have seen money bail end via legislative acts and via judicial intervention.

Now we have evidence of a third option: executive action.

Defendants in most low-level cases in Manhattan will be released without bail—a historic change that could reform a system that regularly imprisons poor people for long stretches simply they can’t afford to pay.

The move by Manhattan District Attorney Cyrus Vance to stop asking judges to hold prisoners on bail is part of a national push towards ending imprisonment of misdemeanor suspects simply because they can’t afford bail.

“When non-violent New Yorkers are jailed as a function of their inability to pay, we perpetuate inequality and mass incarceration,” Vance said in a statement on Tuesday. “Beginning today, we will be guided by the presumption that bail is not appropriate for misdemeanor cases.”

Frustratingly, in Alabama, arrest is not required on any case. Rule 4 of the Alabama Rules of Civil Procedure declares:

(1) A person arrested without a warrant: (i) May be cited by a law enforcement officer to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of and may be released; or (ii) May be released by a law enforcement officer upon execution of an appearance bond or a secured appearance bond in an amount set according to the schedule contained in Rule 7.2, and directed to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of;

I would wonder how many sheriff and police departments have educated their officers of this option. The law is already in place in Alabama; however, I am unaware of any jurisdiction in Alabama which presumptively actuates this provision. in 19 years of practice, I cannot recall more than 10 tens times that a misdemeanant wasn’t arrest and just issued a citation.

On a related note, Atlanta is being pressured “embrace a national wave of bail reform that has already taken hold in places like Chicago, Houston, New Jersey and, most recently, Alaska.”

The police arrested Randall McCrary, a mentally ill man, at a gas station on Oct. 22. They found him covered in his own waste and screaming at customers.

What happened next to Mr. McCrary, advocates say, was a depressingly common reality for poor people charged with minor crimes in Atlanta. The municipal court set his bail at $500, the predetermined amount for a disorderly conduct charge. Mr. McCrary, 45, is indigent and could not pay.

So he waited, in jail, for more than two and a half months, at great cost to both local taxpayers and Mr. McCrary himself. While he was detained, the federal government discontinued his disability checks, said Sarah Geraghty, a lawyer for the Southern Center for Human Rights, who filed a petition Monday demanding his release.

Ms. Geraghty said Mr. McCrary’s case exemplified the injustices inherent in Atlanta’s misdemeanor bail system, which resulted in hundreds of poor people being locked up each year, sometimes for long stretches, because they had been assigned bail amounts they could not pay. In 2016, at least 890 people were transferred from the city to the county jail after failing to make bail, the center found. They were held, many of them on minor charges like littering or driving without a license, for a total of 9,000 hours, costing taxpayers roughly $700,000.

The petition for Mr. McCrary generated some publicity, and on Tuesday, he was released after an anonymous donor posted his bail.


NY may eliminate money bail for low level offenses

Early this week, I reported that Alaska joined a growing number of states eliminating their money bail systems.

Now New York state may join the ranks as well as reported by the New York Times:

Gov. Andrew M. Cuomo plans to ask the New York State Legislature to eliminate cash bail for many crimes and to speed up the disclosure of evidence in trials as part of a package of proposals intended make the criminal justice system fairer for indigent defendants, his aides said.

The proposals will likely be similar to what has been in place in New Jersey and Kentucky and Alaska:

The measure that Governor Cuomo is proposing would eliminate cash bail for people facing misdemeanor and nonviolent felonies. Instead defendants would be released, either on their own promise to return to court, or with some other conditions imposed by the judge. Judges could still impose bail for serious violent crimes, like felony assault or rape, but only after reviewing a defendant’s finances.

Cuomo, a Democrat, follows the lead of three Republican governors in Alaska, New Jersey, and Kentucky in eliminating cash bail and/or substnatially modifying their pretrial bail procedures. In Alaska,

With the new reforms in place, PEW estimates that the number of inmates will decrease by 13 percent and that the state will save $380 million. The state plans to reinvest $98 million of that total over six years in crime victim services, pretrial services and supervision, re-entry support, substance abuse and mental health treatment in both prison and communities, and violence prevention.

Another state moves away from money bail system

There has been another step in this nation’s path toward elimination of money bail. This time it is from the Alaska legislature.

“It’s a fundamental sea change in the way judges will be making their decisions on bail,” said Nancy Meade, general counsel of the Alaska Court System to the assembled attorneys.

When someone is charged with a crime, they will no longer have to pay cash to get out of jail before their trial. Instead, the state will judge each accused criminal under a point-based system that considers how likely they are to show up to court appearances or commit a new crime. They’ll still be monitored, but they’ll be able to go to work, and the state won’t have to pay for their jail time.

If lawmakers are serious about mass incarceration, this is a prime location is start:

Three out of five people in jail are there simply because they can’t afford to pay bail. “If you want to tackle mass incarceration, you have to go to where mass incarceration is happening,” says Cherise Fanno Burdeen, CEO of the Pretrial Justice Initiative. “This is where the most disruptive action of the state happens in people’s lives.”

UPDATE: “With the new reforms in place, PEW estimates that the number of inmates will decrease by 13 percent and that the state will save $380 million. The state plans to reinvest $98 million of that total over six years in crime victim services, pretrial services and supervision, re-entry support, substance abuse and mental health treatment in both prison and communities, and violence prevention.”

Alaska is just the most recent example of lawmakers modifying their systems away from the unsustainable status quo. As summarized in this article from Colorlines,

Even at the federal level, public officials are following advocates’ and activists’ lead. In July, Sens. Kamala Harris (D-Calif.) and Rand Paul (R-Ky.) introduced federal legislation that would give states U.S. Department of Justice grants to “reform or replace the bail system.” In announcing their bill, the progressive Californian and the libertarian Kentuckian pointed to states where reform is already underway. New Jersey’s legislature passed reform in 2014 and the new system went into effect in January. The state’s jail population is down 20 percent since the start of the year and down 35 percent compared to June 2015, according to a new report [PDF] from the Administrative Office of the Court. New Jersey’s reform, like other jurisdictions’, depends on judges’ use of a risk assessment tool to decide who gets out of jail pretrial.

I am afraid that Alabama will not see money bail reform from the legislative branch, though. I expect it will be forced to modify its practices through the judicial branch: through federal and state litigation. I have previously written about such efforts: here, here. Colorlines details how this works; its definitely more expensive option:

Thomas Harvey, who directs the non-profit law firm ArchCity Defenders, is challenging the interrelated system of bail and traffic fines and fees that put people behind bars—what he calls the criminalization of poverty and race—through a series of lawsuits in St. Louis County, Missouri. Just fewer than 1 million people live in the county’s 90 towns, 81 of which have their own police forces and part-time courts. Harvey and his colleagues have sued 30 of those towns, including Ferguson, using class action suits to challenge their use of bail and their operation of what Harvey calls debtors’ prisons. “At least in the St. Louis region, it’s poor folks and communities of color that are being held on cash bail,” Harvey says. “Courts are quicker to impose these onerous consequences on them.” (This is true nationwide as well. Black Americans are 2.5 times more likely to be arrested and almost four times more likely [PDF] to be jailed than White Americans.

Harvey’s group has reached settlements with the cities of Jennings, Velda City and St. Ann. Last year, Jennings agreed to pay $4.7 million in compensation to people detained for court debts and also signed on to a set of reforms including ending cash bail in favor of releasing those accused of nonviolent offenses on their own recognizance. Under the new system, the court employs a five-step process before issuing a warrant for someone’s arrest for failure to appear in court, Harvey says.

These wins and others like them in recent years have occurred in small municipalities throughout the Midwest and South, where there’s often a lack of training and professionalism on the part of court officials, says Harvey. Attorneys involved in these cases and specializing in bail reform litigation, such as those at Civil Rights Corps and Equal Justice Under Law, are now taking on big cities, including Houston and Chicago.

Alaska has adopted a bail “point-system” similar to what has been adopted in New Jersey and Kentucky.

Here’s how it works.

Each suspect gets two grades. One details how likely they are to show up in court. The second estimates how likely they are to commit another crime if they’re released.

The first grade, called the “Failure to Appear Scale” runs 0-8 points. Anything from 0-4 points is considered low risk. Anything 7-8 points is high risk. A suspect gets points based on how frequently they’ve failed to appear in court in the past few years, whether or not they’re booked on a property crime or motor vehicle crime, and how old they were when they were first arrested.

The second grade is called the “New Criminal Arrest Scale” and it runs 0-10 points. Any score 0-5 points is low risk, and a 10-point score is a high risk. Points are awarded for how many times the person has been arrested or convicted in the past few years, how many times they’ve been on probation, how many times they were jailed, and how old they were when they were first arrested.

This system is not perfect, but certainly is an improvement and has resulted in a major decrease in jail populations.

But why did Alaska switch?

Alaska’s existing system of pretrial release is based on money bail. If someone cannot afford the bail amount set by a judge, he or she stays in jail until trial. A study conducted in 2015 by the Pew Charitable Trust and the Alaska Judicial Council found that led to inequal outcomes. Defendants from poorer areas of the state were more likely to plead guilty to crimes and more likely to stay in jail until trial. There was also a racial disparity, possibly linked to the well-known racial economic gap in Alaska and the United States. White, Hispanic and Asian defendants were much more likely to be released before trial than black or Native defendants

Further studies concluded that keeping nonviolent offenders in jail before trial boosted prison costs and reduced the chance that a person — even if found innocent at trial — could return to normal life. In many cases, they had lost their jobs and homes, and returning to crime was the easiest path to subsistence.




Disappointing News in the Making-a-Murderer saga. (SPOILER ALERTS, but do yourself a favor and binge watch this Netflix docu-series)

In a heavily divided opinion, the 7th Circuit Court of Appeals has affirmed the conviction and thereby approved the abusive interrogation tactics employed against this disabled teen.

A federal appeals court in Chicago narrowly overturned a ruling Friday that could have freed a Wisconsin inmate featured in the “Making a Murderer” series from prison, though one dissenting judge called the case “a profound miscarriage of justice.”

The full 7th U.S. Circuit Court of Appeals reviewed Brendan Dassey’s claims that investigators tricked him into confessing that he took part in raping and killing photographer Teresa Halbach in 2005. Dassey was sentenced to life in prison in 2007 after telling detectives he helped his uncle, Steven Avery, rape and kill Halbach.

The 4-to-3 opinion conceded a ruling wasn’t obvious or easy, but said it came down to whether findings by Wisconsin state courts that Dassey wasn’t coerced into confessing were reasonable.

I’ll be honest; I binge watched this series. If I was a law school professor, I would use the series as the basis for an entire class on criminal defense. I nearly threw my laptop across the room watching the episode wherein the statements are obtained. The police behavior was bad; his defense lawyer was atrocious. Without his “coerced” confessions obtained by investigators (and his lawyer!), there would be no evidence to implicate Brandon.

Here is the statement of his attorneys, Laura Nirider and Steven Drizin:

We are profoundly disappointed by the decision of four judges of the United States Court of Appeals for the Seventh Circuit to reverse two prior decisions and deny relief to Brendan Dassey. Like many around the globe, we share the view of the three judges who wrote, in dissent, that today’s ruling represents a “profound miscarriage of justice.” We intend to continue pursuing relief for Brendan, including through a petition for certiorari to the United States Supreme Court.

Today’s ruling contravenes a fundamental and time-honored position of the United States Supreme Court: interrogation tactics that may not be coercive when applied to adults are coercive when applied to children and the mentally impaired. Indeed, when such tactics are applied to vulnerable populations, the risk of false confession grows intolerably. Unfortunately, this time-worn lesson was ignored today by four judges in the case of Brendan Dassey. We at the Center on Wrongful Convictions of Youth are committed to continuing to fight on behalf of Brendan and others like him to prevent future miscarriages of justice.

The Northeast Innocent Project tweeted:

Another travesty of justice: The 7th Circuit rules against Brendan Dassey. False confessions are a leading cause of wrongful conviction and courts who fail to act in cases like this are failing innocent men and women everywhere.

Dassey’s statement was completely contradicted by any forensics:


This matter highlights the danger of exposing juveniles to law enforcement. As I have posted, DO NOT TALK TO POLICE, its is especially true for your children. DO NOT LET YOUR CHILD OR TEEN TALK OR BE QUESTIONED BY POLICE.

In Alabama, Section of 12-15-202 of the Alabama Code enumerates the rights of children in this setting: (a) When a child is taken into custody, the person taking the child into custody shall inform the child of all of the following, in language understandable to the child: (1) The reason that the child is being taken into custody, (2) That the child has the right to communicate with his or her parent, legal guardian, or legal custodian whether or not that person is present. If necessary, reasonable means will be provided for the child to do so, (3) The child has the right to communicate with an attorney. If the child does not have an attorney, one will be appointed for him or her. If the child has an attorney who is not present, reasonable means shall be provided for the child to communicate with the attorney. Before the child is questioned about anything concerning the charge on which the child was taken into custody, the person asking the questions shall inform the child of the rights a second time.

The Alabama Supreme Court held in Ex parte Whisenant, 466 So.2d 1006 (Ala. 1985): “If any one or more of the 12-15-202 warnings are omitted, the
use in evidence of any statement given by the child is constitutionally proscribed.” These rights are sometimes referred to as “Super-Miranda rights.”

In 18 years of practice, I can count on one hand the number of parents who wisely did not let their child speak or be interviewed by law enforcement. However, this past month, one mother refused law enforcement an interview with her teen son; the charges were ultimately dismissed.

(IMPORTANT NOTE: THERE IS NO PARENT-CHILD PRIVILEGE. Anything a child tells a parent can and will be used against them. Therefore a parent could be compelled by court to testify about any statements made by their child to them. Therefore if you get the call, do not talk about the details of the case. Tell your child to remain silent and DEMAND A LAWYER.)




New Interview: “Don’t Talk to the Police! The Fifth Amendment protects both the guilty and the innocent.

Professor Duane is back with a new interview on the Fifth Amendment:


His argument, which he’s since expanded into a new book called You Have the Right to Remain Innocent, is that even if you haven’t committed a crime, it’s dangerous to tell the police any information. You might make mistakes when explaining where you were at the time of a crime that the police interpret as lies; the officer talking to you could misremember what you say much later; you may be tricked into saying the wrong things by cops under no obligation to tell you the truth; and your statements to police could, in combination with faulty eyewitness accounts, shoddy “expert” testimony, and sheer bad luck, lead to you being convicted of a serious crime.

He further details the treacherous territory Americans are in with respect to their right to remain silent:

Up until about five years ago, lawyers would give out business cards to their client and say, “Read this to the police,” and it’d say, “At the advice of my attorney I decline to answer on the grounds that it may incriminate me, I’m invoking the Fifth Amendment.” And there wasn’t a lot of soul-searching and agonizing that went into all of this, because as long as the jury never finds out that you took the Fifth, it’s a perfectly sensible solution. But the tide turned three years ago in 2013 with this wretched, abominable decision by the Supreme Court in Salinas v. Texas that changed everything.

In the Salinas case, a young man was interrogated by the police, and when they asked him a bunch of questions that didn’t seem to be very threatening, he took the bait and answered them all. Then all of the sudden, they [asked a question that made it] obvious they wanted information that might expose him to criminal prosecution, and he just got silent. He didn’t say a word. And there’s no doubt that he was exercising his Fifth Amendment privilege, but he didn’t [formally] assert his Fifth Amendment privilege. So the five Republican [appointees] on the Supreme Court said, Because you didn’t tell the police that you were using your Fifth Amendment privilege, your exercise of the privilege, or your decision to remain silent can be used against you as evidence of guilt. Which probably had a dozen Supreme Court justices rolling over in their grave.

The game has changed now that your choice to use the Fifth Amendment privilege can be used against you at trial depending exactly how and where you do it. As I explain in the book, now the problem is, if you’re kind of clumsy about the way you assert the Fifth Amendment, you’re running a lot of different risks.


He was my evidence professor and here is the lecture which got it all started:


SCOTUS: Bond delays to gather additional evidence to justify the arrest are illegal

As a follow-up to my recent posts on illegal “investigatory holds” and “domestic violence holds”, I recent law review article provides additional support from a federal constitutional perspective to my argument; its entitled: The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin

The article cites

Under [Riverside v. McLaughlin, 500 U.S. 44, 47 (1991)], if the government does not afford a warrantless arrestee a judicial determination of probable cause (known as a ‘Gerstein hearing’) within the first forty-eight hours of his or her arrest, then the government bears the burden of proving that ‘a bona fide emergency or other extraordinary circumstance’ justified the delay. . . Specifically, the McLaughlin Court identified: ‘[1] delays for the purpose of gathering additional evidence to justify the arrest, [2] a delay motivated by ill will against the arrested individual, or [3] delay for delay’s sake” as “[e]xamples of unreasonable delay[s]” that violate the Fourth Amendment’s protection against unreasonable seizures under all circumstances.

For purposes of Alabama investigative holds, the article cites:

In United States v. Davis, 174 F.3d 941, 944 (8th Cir. 1999)., for example, the Eighth Circuit held that even assuming that probable cause existed to arrest a defendant, a mere two-hour delay in the defendant’s Gerstein hearing was still unreasonable where the sole purpose of the delay was to promote further investigation by law enforcement.



If you are not free to leave, you are under arrest and entitled to bond out

As I mentioned in the previous post about the legal fiction of “domestic violence holds,” I have had many clients arrested on what law enforcement called an “investigative hold.” This practice is downright unlawful. In such cases, there is no arrest warrant yet. Rule of Criminal Procedure Rule 4.3(a) says on a warrantless arrest:

If a probable cause determination is not made by a judge or magistrate without undue delay, and in no event later that forty-eight (48) hours after arrest, then, unless the offense for which the person was arrested is not a bailable offense, the person shall be released upon execution of an appearance bond
After arrest, a person’s right to bond immediately springs into play. The arrested person must be presented to a judge or magistrate “without undue delay” to determine probable cause for the arrest and establish their constitutional right to bond. Alabama Constitution § 16
That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required.
Some law enforcement agencies attempt to side-step these rules and claim the person is not “under arrest.” A person is either free to leave, and if not, they are legally under arrest. “In order to decide if a suspect is ‘in custody,’ the court, looking at the totality of the circumstances, must find that a reasonable person in the accused’s position would believe that he or she is not free to leave.” State v. Jude, 686 So. 2d 528, 533 (Ala. Crim. App. 1996)


Alabama Domestic Violence “Cooling Off” Holds are a Legal Fiction

Section 15-13-190, Code of Alabama makes special rules for persons arrested for crimes of domestic violence.

A person arrested for an offense involving domestic violence…may not be admitted to bail until after an appearance before a judge or magistrate within 12 hours of the arrest.

Compare that with the standard rules for bailbonds after arrest. See AL ST RCRP Rule 4.3

A person arrested without a warrant: (i) May be cited by a law enforcement officer to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of and may be released; or (ii) May be released by a law enforcement officer upon execution of an appearance bond or a secured appearance bond in an amount set according to the schedule contained in Rule 7.2, and directed to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of; or (iii) Shall be afforded an opportunity to make bail in accordance with Rules 4.3(b)(3) and 4.4.

An urban myth has developed that persons arrested on domestic violence charges cannot be bonded until after 12 hours of arrest. Section 15-13-190 does not say that; it merely eliminates the options for bond found in Rule 4.3(i) and 4.3(ii). Section 15-13-190 modifies the timeliness of presentation to a magistrate to 12 hours after arrest. Under Rule 4.3(a), a person arrested without a warrant must be presented to a magistrate or judge “without undue delay” and not to exceed 48 hours.  Alternatively, under Rule 4.3(b) a person arrested with a warrant or on complaint must be presented to a magistrate or judge “without undue delay” but not to exceed 72 hours.”

Accordingly, if arrested, don’t let them give you the “we-cant-release-you-for-twelve-hours” run around.

The violation of the speedy presentment requirement may be grounds to exclude evidence obtained after the violation (e.g. confessions, consents, admissions.

(However, I have actually obtained decent civil monetary settlements for clients who were detained for “investigation holds” but were not presented to a magistrate or judge “without undue delay.” Local law enforcement held them and would not let them go which means they were legally under arrest. Even if there is no formal arrest, a person is considered seized for Fourth Amendment purposes when, under the circumstances, a reasonable person would not believe himself free to leave. See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) Once arrested, the rights to bond and presentation to a magistrate arise. Deprivation of those rights is a unlawful imprisonment and civil rights violation.)


Inmate on Prison Rape: “The opposite of compassion is not hatred, It’s indifference.”

Rape in the American Prison

Rape in the American Prison: a grisly article on rape in male penal facilities.

“rape in prison is rarely a sexual act, but one of violence, politics, and an acting out of power roles.” Being raped, or “turned out,” he explained, redefines the male victim “as a ‘female’ in this perverse subculture, and he must assume that role as the ‘property’ of his conqueror or whoever claimed him and arranged his emasculation. He becomes a slave in the fullest sense of the term.”

Read this article and know that in Alabama: 16 years olds can be tried as adults and sentenced to the ALDOC.

Chocolate chip cookies might get you arrested for drug possession

Radley Balko has a running list of all the materials that field tests have mistaken for drugs:

Sage, Chocolate chip cookies, Motor oil, Spearmint, Dr. Bronner’s Magic Soap, Tortilla dough, Deodorant, Billiards chalk, Patchouli, Flour, Eucalyptus, Breath mints, Loose-leaf tea, Jolly Ranchers