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Hillsborough prosecutor joins Texas fight against cash bail. But what about Florida? Hillsborough prosecutor joins Texas fight against cash bail. But what about Florida?

He is among more than 80 lawyers and public officials to sign a support brief in a Texas case challenging the constitutionality of cash bail. But bail reform has yet to come to Florida.
Hillsborough State Attorney Andrew Warren lent his support to a Texas case challenging the constitutionality of cash bail. Criminal justice reformers are taking aim at money bail systems across the nation.
Hillsborough State Attorney Andrew Warren lent his support to a Texas case challenging the constitutionality of cash bail. Criminal justice reformers are taking aim at money bail systems across the nation.
Published Feb. 4, 2019

TAMPA — Count Andrew Warren among the proponents of bail reform.

The chief prosecutor for Hillsborough County recently added his name to a legal brief supporting the plaintiffs in a Texas case challenging the constitutionality of a money bail system.

The brief's authors call money bail "wealth-based discrimination." Warren was one of more than 80 lawyers and public safety officials nationwide who have joined the brief.

"We shouldn't be spending taxpayer money to lock up people who haven't been convicted of a crime when they're not a flight risk or a threat to public safety," the Hillsborough County State Attorney said.

FROM 2017: State Attorney expands Hillsborough juvenile civil citation program

But while he supports reform, Warren says he doesn't see major problems with the bail bond system in Hillsborough County. He also emphasized his support is consistent with other policies he has pursued as he seeks what he believes is a fairer approach to prosecuting crime. He pointed to a decrease in prosecutions for minor charges like driving with a suspended license, offenses that some say contribute to the criminalization of poverty.

"Making sure we are not detaining people based on an inability to pay is consistent with fairness and justice," he said.

• • •

Bail reform is a hot topic nationwide and among criminal justice reformers. The general argument is that cash bail keeps impoverished defendants who can't afford any bail amount trapped in the jail — even though they haven't been found guilty — until their cases are resolved.

Reform advocates say that this adds to the cycle of poverty because long jail stays can cost poor defendants their jobs and even render them homeless. They also argue that being trapped in jail creates a perverse incentive: some might plead guilty to crimes they did not commit just so they can get out of jail.

The American Bar Association has advocated for limits to the use of cash bail.

The reform push has led some jurisdictions to scale back bond schedules for minor offenses, and for others to eliminate cash bail altogether.

The Texas lawsuit challenges the use of pre-set bail amounts in Dallas County. Its plaintiffs include six people who were arrested there in 2018, and who lacked the financial means to pay the bail required for their release. They are represented by lawyers from two civil rights groups. A U.S. District Court in Dallas ruled in favor of the plaintiffs. The case is now on appeal.

FROM 2018: People wrongfully convicted can now petition Hillsborough state attorney for review

The "friend of the court" brief was written by lawyers from Georgetown University Law Center's Institute for Constitutional Advocacy and Protection. Its signers were brought together through Fair and Just Prosecution, a national organization that advises reform-minded prosecutors.

Other Floridians who lent their names include Aramis Ayala, the state attorney for Orange and Osceola Counties, and former Florida Supreme Court Justice Gerald Kogan.

The brief's authors argue that detaining people based on their inability to pay a bail, "offends the constitution, undermines confidence in the criminal justice system, impedes the work of prosecutors and law enforcement officials, and fails to promote safe communities."

They also advocate for a risk-based system where each defendant would undergo an individual assessment to evaluate their risk of not showing up for future court appearances or trial, or committing more crimes while freed. They say there are better methods for determining who gets released and who has to stay in jail.

A similar lawsuit in Houston ultimately led a local court there to revise its bail policies, eliminating cash bail for most misdemeanor offenses.

Some jurisdictions have passed legislation eliminating cash bail in favor of risk-based assessment systems. It happened in California in September. A new law there forces counties to establish pretrial services agencies to evaluate whether someone should be released from jail and under what conditions.

• • •

Bail reform hasn't gained much ground in the Sunshine State.

A 2017 case in Jacksonville challenged the use of a bail schedule for misdemeanor crimes, but a federal judge later dismissed the case.

The chief judge of the Hillsborough Circuit, Ronald Ficarrotta, said the issue hasn't been pushed locally.

"We haven't had substantive discussions about it here in Hillsborough County," Ficarrotta said.

The current bail schedule, which was enacted by the chief judge in 2018, standardizes bail bond amounts based on the severity of an alleged criminal offense. Ordinance violations and second degree misdemeanors are set at $250. First-degree misdemeanors and non-felony DUI cases are $500. Bail is set at $2,000 for third-degree felonies, $7,000 for second-degree felonies, and $15,000 for first-degree felonies.

Bail is not automatically assigned for certain offenses until the defendant gets a hearing in front of a judge. These include arrests for extremely serious crimes like murder and sexual battery. It also includes arrests for domestic violence, violations of probation and gang-related crimes.

Warren said he supports a risk-assessment model "in theory," but such an overhaul would have to come from the Florida Legislature.

State Sen. Jeff Brandes, R-St. Petersburg, has sponsored legislation that would allow chief judges to institute a risk-assessment system within their own circuits in Florida.

Fierce opposition to these efforts comes, naturally, from the bail bond industry.

"We have not seen any evidence that risk assessments deliver different results," said Jeff Clayton, the executive director the American Bail Coalition.

Clayton noted that the issue has not gained as much traction in Florida as it has in other states. He said that's partly because judges set bail for defendants soon after they're arrested, instead of relying solely on bail guidelines.

"The fight is over whether you can have a bail schedule or not," he said, "and if you can, what does due process look like?"

Contact Dan Sullivan at dsullivan@tampabay.com or (813) 226-3386. Follow @TimesDan.

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