Despite state law, bail reform comes to Broward in bid to end unjust treatment of poor, minorities

By Dan Christensen, FloridaBulldog.org

In a move that on its face is at odds with Florida law, Broward’s chief judge ordered an end to the assessment of cash bail for most defendants charged with non-violent, third-degree felonies or misdemeanors before their first appearance in court.

Instead, defendants arrested for a wide variety of lower-level criminal offenses are now being released from jail before trial on their own recognizance, or in the justice system’s vernacular, ROR’d.

“When I took over we had people in the jail on $25 bonds,” said Chief Judge Jack Tuter. “We can’t just house everybody in custody that has committed a minor offense. They may have to come back and spend time in jail later, but their pre-trial housing” is unnecessarily costly for taxpayers.

Tuter said it costs $197 a day to keep an inmate in Broward’s jail system. That doesn’t count the large additional costs for about 300 inmates requiring psychotropic medicines and mental health treatment. Annual spending on the jail is $330 million, plus an additional $26 million on healthcare for inmates, he said.

Except for defendants charged with a capital offense or an offense punishable by life imprisonment, every person charged with a crime is entitled to pretrial release on what Florida’s Rules of Criminal Procedure call “reasonable conditions.” Bail is to help ensure that defendants show up for their court proceedings, and to protect the community from dangerous criminals.

BAIL REFORM A HOT TOPIC – ELSEWHERE

Tuter cited constitutional authority granted to the state’s chief judges to promote the “prompt and efficient administration of justice.” His administrative order, which took effect May 2, marks a significant change of direction in Broward’s criminal justice system, and a first in Florida.

Still, the change has drawn little attention outside the courthouse even though bail reform is sparking heated debate across the nation as crime rates have risen. Elsewhere in Florida, the ACLU is suing to halt pretrial detention based on a defendant’s ability to post a cash bond.

In an interview Tuesday, Tuter characterized the new convenience bond schedule as a work in progress achieved after three years of study and discussion.

“It’s a collaboration with the sheriff, the state attorney and the public defender,” the judge said. “We also solicited comments from the defense bar association, and we came up with this product.”

The order’s avowed purpose is “to balance the space limitations of the Broward County Jail and the need to protect the public,” but there is also a more fundamental reason for the changes, Tuter said.

“I didn’t say it in my order, but everywhere I have spoken on this topic I have made it clear that I thought the [previous] bond schedule was inequitable and that the people who were being held in jail were poor and mostly minorities who did not pose a risk to the public,” Tuter said. “I now have a state attorney and a sheriff who agree.”

‘ANOTHER WAY’ TO LOOK AT BAIL REFORM

Florida’s 20 judicial districts have bail bond schedules that set advance bonds for specified offenses other than capital and life felonies, for which no bond is available. But those bonds sometimes allow people charged with odious crimes to get out of jail if they have enough money to post bond.

“From the first day I’ve grappled with this, and you can look at it another way. When we had a [different] bond schedule, there were thousands and thousands of charges and each one had a convenience bond, except for capital crimes and life terms,” said Tuter. “Even some charges that people considered heinous crimes, like animal cruelty. The bond was $1,000. If they paid that they would just walk out. Under our schedule crimes against persons and animal cruelty, and the many others, defendants can’t get a convenience bond. They have to see a judge.”

In the past, Broward’s jail system was plagued by overcrowding and poor conditions, notably for the mentally ill. In 1976 a class action lawsuit was brought against the sheriff that led to long-term monitoring by a federal judge. The case was finally settled in 2018.

In the late 2000s, the jail’s population reached nearly 6,000, including those awaiting trial and hundreds more who had been sentenced, according to New York-based Vera, an advocacy group that tracks incarceration rates at jails across the country.

“When we did this order, we had about 3,300 people in custody,” Tuter said. “The unintended consequence of this order” is that the jail population has swelled five percent to about 84 percent of capacity, he said.

NO BOND REQUIRED CRIMES

That increase has Tuter puzzled. “I’m waiting until the end of the year to see why the jail cap has gone up instead of down,” he said, adding that adjustments will be made as needed.

Here are some examples of crimes for which bail is no longer required to get out of jail at booking:

• Grand theft under $5,000.
• Violations of municipal ordinances, such as urinating in public.
• Dealing in stolen property.
• Theft of trade secrets.
• Unauthorized modification of a computer or computer system.
• Disorderly conduct; disorderly intoxication.
• Loitering and prowling.
• Simple trespass.
• Defrauding an innkeeper.

The bond schedule also sets bail for eligible persons charged with first degree felonies at $15,000, and second-degree felonies at $7,500.  In all cases, defendants are ineligible for the bond schedule where a bond was previously set on a warrant, a violation of probation is charged or a capias arrest was made.

Jail booking officers determine eligibility from a 25-page list of ineligible offenses, including domestic and dating violence, firearms violations and drug trafficking or manufacturing, that were compiled and agreed to by Tuter, State Attorney Harold Pryor, Sheriff Gregory Tony and Public Defender Gordon Weekes. If a defendant’s charge is on the list, he or she must wait in jail until a judge can determine whether release is appropriate.

“Nothing in this administrative order precludes the booking officer from holding an arrestee over for a First Appearance hearing based on good cause shown, i.e., extensive criminal history or the accused poses a public safety threat if released,” the order says.

BAIL REFORM CLASHES WITH STATE LAW

The chief judge’s bail reform order is a significant complement to the county’s pretrial supervision program, which screens and interviews defendants then makes recommendations. Defendants granted release are then supervised by a sheriff’s office unit where monitoring ranges from telephone check-ins to electronic monitoring and house arrest.

The pretrial program helps deal with defendants once they get before a judge. The new bail reform order delegates administration of the release of certain low-risk inmates to BSO at the time of booking.

State law, however, requires that before any defendant is released on bail judges “shall” consider a dozen factors, such as the “nature and circumstances” of the offense, “the weight of the evidence,” the defendant’s “family ties, length of residence in the community, employment history, financial resources and mental condition,” and whether the defendant is already out on release from another criminal case.

The divergence of Tuter’s order from the law’s requirement is causing a backlash.

The International Union of Police Association IUPA, Local 6020, represents Broward Sheriff’s deputies and sergeants. IUPA “strongly advises Chief Judge Tuter to rescind this administrative order until a more viable solution can be reached,” said union president Matt Cowart.

“This order in and of itself only exacerbates the situation by releasing non-violent felony and misdemeanor offenders back into the community, inadvertently placing the community and victims in a higher risk of becoming victimized again from the same offender in as little as 24 hours,” said Cowart. It “also diminishes the safety of the community, the victims and the law enforcement professionals who enforce the law. Additionally, it diminishes the accountability and consequences imposed on an offender who commits a crime.”

INCREASED LIABILITY FOR COUNTY?

Wayne Spath is the longtime owner of Fort Lauderdale’s Brandy Bail Bonds, and chairman of the 18-member Broward Public Safety Coordinating Council, which advises the county commission on jail issues.

“I’m not a lawyer, but in my opinion the judge is the only one who can release a defendant. That’s what the statute says; it says the judge sets the bond,” Spath said. “Judges are accountable. If a judge makes the decision then he is putting his fanny on the line.”

Spath predicts the order will result in an increase in the number of failures to appear. “The people that have nonmonetary release are the most failures to appear,” he said.

Veteran Fort Lauderdale criminal defense lawyer Gary Kollin said the delegation of responsibility for release of some inmates from judges to jail officers creates potential liability for the county.

“Let’s say there’s a misinterpretation that leads to keeping someone in jail who should have been released and the person is harmed in jail. Is the sheriff guilty of false imprisonment? There could be financial liability,” Kollin said.

BAIL REFORM EFFORTS, FINDINGS

Florida’s appetite for bail reform outside of liberal South Florida appears low.

Last October State Rep. Yvonne Hayes Hinson, D-Alachua, introduced HB 311 that proposed expanding alternatives to arrest by requiring officers to issue notices to appear in certain circumstances, and declaring that criminal defendants charged with a felony are presumed to be entitled to release without monetary bail. The bill, and a companion bill in the Senate filed by Sen. Darryl Rouson, D-St. Petersburg, died quick and quiet deaths in Republican-dominated House and Senate judiciary committees.

In 2019, New York enacted a law that virtually ended the use of cash bail for non-violent felonies and misdemeanors. Opponents, including New York City Mayor Eric Adams, blame the law for an increase in crime.

The Brennan Center for Justice studied the law’s impact on public safety.

“Critically, we find no evidence to believe that bail reform drove recent increases in violence,” wrote Ames Grawert and Noah Kim, respectively the center’s senior counsel and researcher.