Nebraska Legislature

LINCOLN–Members of the Judiciary Committee heard testimony March 4 on a bill that would eliminate cash bail and appearance bonds.

Cash bail and appearance bonds are used to ensure that an arrested person appears in court for their trial. When a person is arrested, a judge can release them pending trial. One way to do that is with a cash bond.

According to LB 636 introduced by Sen. John Cavanaugh of Omaha, the judge could set a bond to the amount of $1,000, 10% due meaning the defendant or their family would have to post $100 to be released pending trial. When the defendant would come to court, if the case is resolved, that person would get back $100 minus a 10% processing fee.

A judge can also require other conditions of release, such as a daily drug and alcohol screening.

In his opening statement, Cavanaugh clarified that the bill would not result in the release of a person’s own recognizance of everyone who held pretrial. Instead, it would allow people to return to their lives with reasonable restrictions.

“What this bill does is twofold,” Cavanaugh said. “It would eliminate the cash bail and replace it with other tools the judge could use to ensure the safety of the community and ensure the appearance in court, while not holding the defendant unnecessarily in jail, causing them to lose their job, their house or primary school or treatment program.”

Currently, people who are held pretrial because they can’t afford to post bail are in the same position as those whose judges felt couldn’t safely enter the community, according to Cavanaugh.

“People should not face jail time solely because of their inability to pay,” he said. “Under this bill, a judge could set conditions of release that actually bear a relationship to the reasons bail exists.”

Cavanaugh said that many people in Douglas County were deprived of their liberty by being held pre-trial.

Cavanaugh referenced a day in Douglas County when 101,176 people were being held.

“Nine hundred eighty-eight of those people were held pre-trial, meaning almost 1,000 members of our community were in jail, and they had not yet been convicted of a crime,” Cavanaugh said. “They were still innocent until proven guilty. I’m sure it didn’t feel that way to them as they are currently being deprived of their liberty.”

Proponent Joe Nigro, Lancaster County public defender, explained how people are affected by being held pre-trial.

“Many of us don’t have to worry about losing our jobs if we miss a day of work, but many of the people we represent will lose their job if they miss a shift. Then they lose their housing, and their children can be placed in foster care. Time in jail can be devastating, and this is for people who are presumed innocent,” he said.

Nigro added that the bill would replace the current money bond system with risk assessment, screening and pre-trial supervision for those who need it.

Public safety may actually improve if the current system is changed, according to proponent George Dungan, at the Lancaster County Public Defender’s Office.

“An individual who has the money can get out with no determination of public safety,” he said. “If, however, something such as a validated risk assessment tool is utilized, that gives an actual number or scale that a court can look at to determine whether or not public safety is actually at risk by the individual reentering the community.”

Drawing on his experience in the Douglas County Public Defender’s Office, Cavanaugh argued that in the current cash bail system, there’s no relationship between the bail and the likelihood of an arrested person’s appearance in court or their danger to society and that cash bail is only a measure of access to capital and unfairly penalizes poor people.

“Defendants who cannot afford bond may take a guilty plea to avoid more jail time, even if they have a valid defense,” he said.

Nigro mentioned the District of Columbia and New Jersey’s cash bond reductions. In the District of Columbia, 90% of people are released, and 90% return for their trials without committing other offenses. New Jersey significantly reduced their population of people in jail awaiting trial, but the number of people returning for trial and the number of those committing other offenses while released remained relatively unchanged.

“The current system is demonstrably discriminatory against people of color…In 2016 we looked at the four largest counties…at that time, the majority of those people were held in pre-trial detention, and at that time, six in 10 were people of color,” he said. “That’s a majority and certainly an overrepresentation of people of color in the state of Nebraska.”

Bruce Ferrell, chief of police for Wahoo and the second vice president for the Police Chiefs Association (PCAN) of Nebraska, spoke in opposition.

“PCAN believes the bail system within the state of Nebraska is working,” he said. “Courts are being responsible and identifying persons who are flight risks, have no ties to the jurisdiction, have committed a crime of violence or are repeat offenders.”

Ferrell said that although law enforcement has been using common sense and writing citations in lieu of booking, among other things, there are still 10s of 1000s of people currently under warrant for failure to appear in the state.

Ferrell also brought in data from another state that had passed bail reform.

“In New York state, bail reform was passed in 2019, NYPD provided statistical information in the first two months of 2020 crime was up 22.5%,” he said. “In that same period, 482 persons previously arrested released on bond with no cash bail went on to commit 846 new crimes.”

“Across the nation, people have realized that detaining people based upon how much money they have is immoral,” Nigro said.

Senior journalism and advertising/public relations major at the University of Nebraska-Lincoln.