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Op-Ed: Montgomery court order handcuffs judges

By, Greg Glod, Americans for Prosperity

Jailing people who have not been convicted of a crime and pose no threat to public safety is a major problem in our criminal justice system. But we cannot properly remedy it unless judges are allowed to use their discretion to keep us safe and protect our rights. 

Case in point, Montgomery County, AL, Circuit Court Judge Johnny Hardwick recently signed an order eliminating bail requirements and other conditions of pre-trial release for individuals charged with certain criminal charges. While well-meaning, Hardwick’s order would have unintended consequences for public safety. Instead of this one-size-fits-all approach that handcuffs judicial discretion, Montgomery should consider more discretionary policies that have been proven to reduce needless incarceration without jeopardizing public safety.

Judge Hardwick’s order specifically requires judges in Montgomery County to release people without money bail or heightened non-financial conditions of release if they are charged with certain traffic offenses (DUI is an exception), misdemeanor offenses, Class D or C felonies, or certain “non-violent” Class B felonies such as First-Degree Theft of Lost Property.  

The goal of this directive is noble: individuals shouldn’t be deprived of their liberty simply because they can’t afford bail. In U.S. v Salerno (1987), former Supreme Court Chief Justice William Rehnquist wrote, “in our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” These words represent a core principle of our nation’s legal system. Unfortunately, that principle is routinely ignored today, as many citizens are deprived of their liberty without reasonable justification.  

Nationwide, there are roughly 445,000 currently incarcerated individuals who have not been convicted of a crime. Many pose a threat to the community and should be kept off the street. But others are there simply because they cannot afford a small amount of bail. Meanwhile, those with financial means can essentially buy their freedom – regardless of the risk they pose to the public. 

This two-tiered system endangers public safety. Not only that, it sticks taxpayers with the significant cost of jailing individuals that bear little to no threat to them – money that could be better spent preventing and solving violent crimes.

Hardwick’s order will certainly reduce the number of people in jail who don’t need to be there pre-trial. Crucially, however, it doesn’t consider that there are instances when judges should be able to use their discretion to implement financial bail or other conditions of release.  

What if a person charged with a “non-violent” felony or misdemeanor has a history of not showing up to court dates? What if the person has a lengthy criminal history that includes violent offenses and heightened conditions of release would be appropriate? What if the person is homeless, has a mental illness, or has a substance use disorder, but the judge is unable to order certain treatment or services at this critical juncture? 

A blanket ban on bail and other conditions of release makes it difficult for the justice system to balance fairness and safety. As is far too often the case, Montgomery County’s pre-trial system was in need of a scalpel, but Judge Hardwick handed it a machete.  

The Alabama Supreme Court did issue a temporary pause on implementing this order. Stakeholders should take this opportunity to come together to make changes that more appropriately balance the interests of public safety, individual liberty, and redemption. 

One such solution is to amend the Alabama Constitution to allow judges greater discretion to detain someone who poses a high risk to the safety of the community. Currently, judges can only detain individuals charged with certain types of the highest levels of murder (called capital offenses). In every other case, judges must provide a bail option or release them with no money bail attached. 

Alabamians don’t usually look to New Jersey for public policy inspiration, for good reason. But the Garden State has implemented an objective, evidence-based risk tool that looks at factors beyond current offenses to help guide judges in their pre-trial determinations – and it’s been working. Data shows that the higher the risk a person poses, the more likely they are to be detained. Additionally, the Annual Report to the Governor and the Legislature (2020) shows that failure-to-appear rates and new crimes committed by those released have stayed relatively the same compared to the years before the tool’s implementation in 2017 – even though significantly more people are being released pre-trial. Alabama should likewise take a leadership role on this issue and pave the way for reform in other like-minded states.

At the local level, Montgomery County should limit the scope of its mandate and allow for bail or other non-financial release conditions in more circumstances, particularly for the felony offenses affected by Judge Hardwick’s order. Harris County, TX, was forced to make changes similar to Montgomery County after it was sued for misdemeanor bail practices. However, those changes applied only to misdemeanor offenses, allowed judges to implement non-financial conditions of release like treatment, ankle monitors, etc., and made large carveouts for more serious misdemeanors and persons arrested while out on pre-trial release or on community supervision. There is no evidence that felony offending has increased since the new practices were implemented.

The public deserves not only a more just criminal legal system that protects individual liberty and due process, but a system that helps ensure the safety of our communities. Current practices are failing at both. I commend Montgomery for attempting to address this problem, but policymakers need to look at the evidence and learn from states and localities that have been able to successfully balance these interests in a more effective way than this order would. 

Greg Glod is an Americans for Prosperity fellow focused on public safety and criminal justice reform. 

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