H. R. 2152
IN THE HOUSE OF REPRESENTATIVES
March 23, 2021
Mr. Lieu (for himself and Mr. Nadler) introduced the following bill; which was referred to the Committee on the Judiciary
To provide grants to States, localities, and Indian Tribes to reform their criminal justice system to encourage the replacement of the use of payment of secured money bail as a condition of pretrial release in criminal cases, and for other purposes.
This Act may be cited as the
Pretrial Integrity and Safety Act of 2021.
Purpose and findings
The purpose of this Act is to provide grants to States, units of local government, and Indian Tribes to reform their criminal justice system to encourage the replacement of the use of payment of money bail as a condition of pretrial release in criminal cases.
Congress finds the following:
The justice system of the United States, a cornerstone of our free society, is built on the ideals that all accused people are presumed innocent unless and until proven guilty, that all accused people have the right to assert their innocence in a trial, that liberty should not be denied absent due process of law, that rich and poor people should be treated equally, and that people should be judged by their own individual actions, and not prejudged based on the actions of others.
Pretrial detention and the money bail systems prevalent in most States undermine these ideals by jailing people unnecessarily before a finding of guilt and with minimal due process, and by establishing a system that allows wealthy people to pay for their liberty, while poor people remain in jail.
The inability to post money bail may result in innocent people pleading guilty to low-level crimes they did not commit so they can be released.
Money bail systems have resulted in disparate harms to poor people and communities of color. Compared to white men charged with the same crime and with the same criminal histories, African-American men receive bail amounts that are 35 percent higher, and for Latino men, bail is set 19 percent higher than for white men.
African Americans are 24 percent more likely to be denied bail and 21 percent less likely to be granted non-financial release than whites with similar legal characteristics. Latinos are 25 percent less likely to be granted nonfinancial conditions of release.
Although most women in jail are charged with nonviolent crimes, women are less likely to be able to afford money bail, and women in jail before trial earn scarcely more per year than the average bail amount of $10,000.
Detaining people who would otherwise be highly likely to succeed in pretrial compliance, even just for a few days, is strongly correlated with higher rates of new criminal activity both during the pretrial period and years after case disposition.
When held for 2 to 3 days, people who would have been highly likely to succeed in their communities are almost 40 percent more likely to be arrested for new crimes before trial than similarly situated defendants held no more than 24 hours.
Court reminder programs are a low-cost, highly effective way of improving court appearance rates. One review of different forms of court reminders found failure-to-appear rates were reduced by 23 to 43 percent with the use of reminders.
Pretrial supervision is most effective for people with a decreased probability of appearing in court, reducing failures to appear by 33 to 38 percent.
Jailing individuals before trial is the greatest expense generated by current pretrial justice practice. Unconvicted detainees account for 95 percent of jail population growth, nationally, since 2000. Taxpayers now spend approximately $38,000,000 per day to jail individuals who are awaiting trial. Annually, this adds up to $14,000,000,000 used to detain individuals.
Pretrial integrity and safety
Title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10101 et seq.) is amended by adding at the end the following:
PRETRIAL INTEGRITY AND SAFETY
Grants and conditions
Replacement of money bail
The Assistant Attorney General may make grants to eligible entities for the replacement of the use of payment of money bail as a condition of pretrial release with respect to criminal cases.
National pretrial reporting program
The Assistant Attorney General may make grants to eligible entities to implement a National Pretrial Reporting Program to collect data on the processing of defendants by courts of States, units of local government, and Indian Tribes.
Terms and conditions
Duration of grants
A grant under subsection (a) shall be for a period of 3 fiscal years.
Replacement of money bail
During each fiscal year for which amounts are made available to carry out subsection (a)(1), the Assistant Attorney General may award not more than 6 grants under such subsection to eligible entities for the 3-year grant period beginning in such fiscal year.
In making grants under subsection (a)(1) for a 3-year grant period beginning in a fiscal year, the Assistant Attorney General shall ensure that the total amount awarded under all grants for the duration of such period does not exceed $10,000,000, of which—
not more than $6,500,000 shall be grants to State, local, or Tribal court systems; and
not more than $3,500,000 shall be grants to eligible entities that are not a State, local, or Tribal court system to provide technical assistance, training, and performance evaluation.
National pretrial reporting program
The Assistant Attorney General may not make more than $5,000,000 in grants under subsection (a)(2) for any 3-year period.
Use of funds for replacement of money bail grants
Amounts received under a grant under subsection (a)(1)—
shall be used for developing the long-term, sustainable capacity to perform more effective pretrial practices that include system analysis, training and technical assistance, meeting facilitation, research and performance evaluation, and information technology reprogramming; and
in carrying out pretrial practices, shall seek to incorporate and implement the elements described in paragraph (2).
The elements described in this paragraph are—
expanding the use of citations instead of custodial arrest;
replacing the use of payment of money as a condition of pretrial release;
requiring representation by counsel with adequate training in representing defendants at pretrial detention hearing for all defendants as soon as feasible after custodial restraint, but not later than the first hearing at which a defendant’s liberty is subject to restriction;
a presumption of release in all cases; and
limiting the authority to request pretrial detention to those defendants who have been charged with—
felony offenses involving actual violence against another person or punishable by a maximum term of life imprisonment;
misdemeanor crimes of domestic violence;
misdemeanor crimes of stalking; or
misdemeanor hate crimes;
ensuring that before detention or any condition of pretrial release more restrictive than release on recognizance is imposed, there is a pretrial release hearing that—
provides for the right to present evidence, the right to cross-examine adverse witnesses, and the right to testify or remain silent;
results in a written record explaining the clear and convincing evidence relied on by the judicial officer to justify a detention order or additional condition of release; and
occurs as soon as feasible after custodial restraint, but not later than 24 hours after custodial restraint if the individual is being detained, unless the defendant requests a continuance;
ensuring that before pretrial detention is imposed—
a judicial officer determines by clear and convincing evidence that the individual poses a high risk of intentional avoidance of prosecution or of seriously physically harming another reasonably identifiable person during the adjudication period;
a judicial officer determines by clear and convincing evidence that no condition, or combination of conditions, can sufficiently mitigate a high risk of intentional avoidance of prosecution or of seriously physically harming another reasonably identifiable person during the adjudication period; and
no less restrictive condition is adequate to address the specific risk or risks identified;
ensuring that before any condition of pretrial release more restrictive than release on recognizance is imposed—
a judicial officer determines by clear and convincing evidence that the individual poses a high risk of intentional avoidance of prosecution or of seriously physically harming another reasonably identifiable person during the adjudication period; and
a judicial officer determines by clear and convincing evidence that no less restrictive conditions or pretrial supports can sufficiently mitigate a high risk of intentional avoidance of prosecution or of seriously physically harming another reasonably identifiable person during the adjudication period;
if pretrial release requires imposing additional conditions beyond release on recognizance, ensuring that these conditions—
are nonfinancial, pose no cost to the defendant, and are relevant only to the charge;
are the least restrictive conditions that would reasonably ensure the appearance of the defendant in court or that would reasonably ensure that the defendant does not present an imminent threat of serious physical harm to a reasonably identifiable person; and
were set without consideration of or with decreased weight given to criminal convictions older than 2 years;
ensuring supervision of the conditions of pretrial release is based on proven data outcomes;
improvements made to the applicable pretrial services agency that, among other functions—
provides support to defendants awaiting trial to effectively meet the conditions of release placed on them by the judicial officer;
provides outreach to and partnership with community-based support structures to connect defendants with supportive services; and
provides data collection, analysis, and research capabilities to assist the jurisdiction in achieving the benchmarks listed in paragraph (3);
ensuring an officer of the State, unit of local government, or Indian Tribe that brought the charges against the defendant appears before a committing magistrate, judge, or other judicial officer at all hearings;
ensuring the constitutional right of a defendant to a speedy trial is effectuated, including—
setting specific limits on the time within which either the defendant shall be brought to trial or the case shall be resolved through a nontrial disposition;
providing guidelines for computing the time within which the trial must be commenced or the case otherwise resolved; and
establishing appropriate consequences in the event that the right of the defendant to a speedy trial is denied, and ensuring that under no circumstances a person is detained longer than the maximum sentence allowable if convicted of the charges;
ensuring that the defendant and the State, unit of local government, or Indian Tribe that brought the charges against the defendant is entitled to an immediate, expedited appeal of a pretrial detention decision; and
instituting a system of data collection and reporting to determine the effectiveness of the process replacing the money bail system.
A State, local, or Tribal court system receiving a grant under subsection (a)(1) shall seek to achieve the following:
Defendants return to court rates are not less than 95 percent.
Not more than 10 percent of defendants are rearrested pending trial.
Overall release rates of defendants pending trial are not less than 95 percent.
100 percent of defendants have an attorney at the first appearance of the defendant before a magistrate, judge, or other judicial officer.
100 percent of defendants preventively detained were detained after a pretrial release hearing that occurred not later than 24 hours after custodial restraint, unless the defendant requested a continuance.
To the extent feasible, charging decisions are made not later than 14 days after the date of the issuance of a citation or custodial arrest.
To the extent feasible, the trial of the defendant begins not later than 30 days after the date of the issuance of a citation or custodial arrest.
No defendants were detained during any portion of time from arrest through adjudication simply due to an inability to satisfy a legal financial obligation set by the court.
Alternative pretrial release mechanisms
Nothing in this part shall be construed to prohibit the consideration of alternative pretrial release mechanisms that replace money bail systems while furthering the principles described in this part.
Each entity receiving a grant under this section shall submit to the Assistant Attorney General, for each fiscal year during which the entity expends amounts received under the grant, a report, at such time and in such manner as the Assistant Attorney General may reasonably require, that contains—
a summary of the activities carried out using amounts made available under the grant;
an assessment of whether the activities are meeting the need for the program identified in the application for the grant;
for a grant under subsection (a)(1), data on the money bail program of the State, local, or Tribal court system; and
such other information as the Assistant Attorney General may require.
The data provided under paragraph (1)(C) shall—
be broken down by the demographic variables of age group, sex, race and ethnicity, disability, and charges filed;
include the percentage of defendants detained in jail or prison who are released from jail or prison prior to case disposition, broken down by demographic variables of age group, sex, race and ethnicity, charges filed, and release condition;
provide the average time to release from jail for defendants who are released pretrial, broken down by demographic variables of age group, sex, race and ethnicity, disability, charges filed, and release condition;
provide the percentage of defendants who are detained for the entire duration of the pretrial phase of their case, broken down by demographic variables of age group, sex, race and ethnicity, disability, charges filed, and reason for detention;
provide the average duration of the period defendants who are not released are in custody in a prison or jail before the disposition of their case, broken down by demographic variables of age group, sex, race and ethnicity, disability, charges filed, and reason for detention;
provide the percentage of defendants released from custody before trial who appeared at all court appearances for which the court expected them to appear during the pretrial phase of their case, broken down by demographic variables of age group, sex, race and ethnicity, disability, charges filed, and release condition;
provide the percentage of defendants released from custody before trial who were not arrested for or charged with a new crime during the pretrial phase of their case, broken down by demographic variables of age group, sex, race and ethnicity, disability, charges filed, and release condition;
provide data on the access of defendants to counsel, including the number of counsel appointments and the outcomes of pretrial release decisions in all cases where counsel was provided; and
provide data on the most serious offense with which defendants were charged and the classification of the offense.
Allocation of funds
For fiscal year 2021, of the amounts appropriated to the Office, the Assistant Attorney General shall use $15,000,000 to carry out this part.
Limitations; equitable distribution
Of the amount made available to carry out this section in any fiscal year—
not more than 2 percent may be used by the Assistant Attorney General for salaries and administrative expenses; and
not more than 25 percent may be used for technical assistance, training, and evaluation.
The Assistant Attorney General shall ensure that grants awarded under this section are equitably distributed among the geographical regions and between urban and rural populations, including Indian Tribes, until all funds made available are expended, consistent with the objective of reducing recidivism among criminal offenders.
Reallocation of appropriations
A recipient of a grant under subsection (a) shall return to the Assistant Attorney General any amounts received under a grant under subsection (a) that are not expended for a purpose described in this section.
Ability to pay determination
A recipient of a grant under subsection (a) may only impose a fee or fine in a criminal proceeding if a court makes a written determination that the defendant has sufficient resources or income to pay all or part of the fee, fine and costs. In making that determination, the court shall consider whether the defendant qualifies for a public defender or appointed counsel.
In this subsection:
The term fees—
means monetary fees that are imposed for the costs of fine surcharges or court administrative fees; and
includes additional late fees, payment-plan fees, interest added if an individual is unable to pay a fine in its entirety, collection fees, and any additional amounts that do not include the fine.
The term fines means monetary fines imposed as punishment.
In this part—
the term domestic violence means a pattern of behavior involving the use or attempted use of physical, sexual, verbal, emotional, economic, or technological abuse or any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim, by a person who—
is a current or former spouse or dating partner of the victim, or other person similarly situated to a spouse of the victim under the family or domestic violence laws of the jurisdiction;
is cohabitating with or has cohabitated with the victim as a spouse or dating partner, or other person similarly situated to a spouse of the victim under the family or domestic violence laws of the jurisdiction;
shares a child in common with the victim;
is an adult family member of, or paid or nonpaid caregiver for, a victim aged 50 or older or an adult victim with disabilities; or
commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the jurisdiction.
the term eligible entity means a public or private entity, including—
a nonprofit entity (including a tribal nonprofit);
a faith-based or community organization;
a State or Tribal court system;
a unit of local government; and
an Indian Tribe;
the term proven data outcomes, with respect to supervision of the conditions of pretrial release, means intervention programs and supervision policies, procedures, programs, and practices that use data to identify the least restrictive conditions necessary to provide reasonable assurance that the individual does not pose a high risk of intentional avoidance of prosecution or of seriously physically harming another reasonably identifiable person during the adjudication period;
the term least restrictive conditions—
includes court date notifications by phone call, letter, postcard, text message, or in-person reminder or another nonrestrictive pretrial supervisory condition; and
does not include a condition that imposes additional financial obligations on the defendant, including charging the defendant for implementation of the conditions;
the term misdemeanor crime of stalking means an offense that—
is a misdemeanor crime of stalking under Federal, State, Tribal, or municipal law; and
is a course of harassment, intimidation, or surveillance of another person that—
places that person in reasonable fear of material harm to the health or safety of—
an immediate family member (as defined in section 115 of title 18, United States Code) of that person;
a household member of that person; or
a spouse or intimate partner of that person; or
causes, attempts to cause, or would reasonably be expected to cause emotional distress to a person described in items subclauses (I) through (IV) of clause (i);
the term misdemeanor hate crime means an offense that—
is a misdemeanor under Federal, State, or tribal law;
has, as an element, that the conduct of the offender was motivated by hate or bias because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person; and
involves the use or attempted use of physical force, the threatened use of a deadly weapon, or other credible threat to the physical safety of any person;
the term money bail means a secured monetary obligation that is imposed by a court as a condition of the initial release of a defendant or ongoing court conditions of release before the trial or adjudication of the criminal charges pending against the defendant;
the term reason for detention means whether a defendant was held without bond, held on another charge, or held for another reason;
the term release condition means whether a defendant was released—
based on nonfinancial, personal recognizance;
with pretrial supervision;
with an unsecured financial obligation;
with a secured financial obligation; or
with a combination of the conditions described in subparagraphs (A) through (D); and
the term State, local, or Tribal court system means the court, court system, administrative offices of the courts, or similarly situated agency of a State, unit of local government, or Indian Tribe.