An obscure court case could reverse bail reform

Last week would have been my father Robert F. Kennedy’s 99th birthday. As attorney general, his career — and enduring legacy — was built on his commitment to the fair, just and equal application of law. Nowhere was this more evident than his efforts to reform our bail system.

In 1964, my father reminded the Senate at a hearing on bail legislation that in America we presume everyone is innocent until proven guilty. The bail system protects that ideal by letting judges release the accused from pretrial detention if they do not pose not a danger to the community, after posting a sum of money that will guarantee their appearance in court.

When properly functioning, the bail system prevents premature punishment of people merely accused of crimes but not convicted. It ensures that taxpayer dollars aren’t wasted on unnecessary incarceration.

Now that system is fundamentally threatened by a recent New York court case that could be heard by the Supreme Court.

Earlier this year, New York’s Court of Appeals (the state's highest court) issued a decision in a case called People v. Franklin. At the heart of the case is the Sixth Amendment’s Confrontation Clause, which guarantees a constitutional right to cross-examine accusers at a criminal trial. The confrontation right has long been a bedrock of our criminal legal system, ensuring that evidence presented during a trial is fair and accurate. But in this case, the court stripped the defendant of his constitutional right to confront and cross-examine at trial the author of his bail report.

The Franklin decision may seem like it’s only about a technical rule for lawyers. But hidden beneath the legal terminology is a threat to the accuracy and fairness of bail reports. This could threaten the entire bail system, and ultimately exposes more people to arbitrary and unnecessary pretrial detention.

Bail reports are a crucial component of determining fair bail. Following an arrest, a pretrial services organization will sit down with the accused individual for a bail report interview. The organization or agency will ask questions that help paint a picture of the accused person’s personal and financial circumstances. Do they have access to stable housing? Do they have employment, a working phone number, access to transportation or family members who can take them to and from court if needed?

A bail report author will use this information to prepare a report that courts rely on to decide whether to release an individual back into the community for the duration of their criminal case. People accused of crimes depend on these reports to show the court that they can and will appear for their cases. But for bail reports to be sources of reliable information, those interviewed must be as honest and forthcoming as possible, confident that any inaccurate or unfair use of their statements by a bail report author can be tested by confrontation and cross-examination.

The Franklin decision undermines the candor required for fair, reliable and accurate bail determinations. By removing the Confrontation Clause safeguard, the decision also heightens the risk that bail report interviews will be unjustly used to penalize accused people.

Being held in pretrial detention for days, weeks or months on end can destabilize a person’s life. According to the Prison Policy Initiative, people held in pretrial detention are far more likely to plead guilty, even if they’re innocent; be convicted; be sentenced to jail; have longer sentences if incarcerated; and be arrested again when compared to “similarly situated peers who are not detained.”

As an attorney and longtime human rights advocate, I have seen the impact that bail can have on individuals, families and whole communities. In 2019, after advocacy from Robert F. Kennedy Human Rights and other organizations, the New York legislature reformed bail laws to ensure that people wouldn’t be denied access to bail simply because they were too poor to afford it. As a result, the statewide jail population hit record lows in 2020, and court appearance rates increased from 85 percent to 91 percent.

Because of the new law, thousands of New Yorkers who otherwise would have been held in jail were allowed to reunite with their families and keep their jobs, housing and the custody of their children.

Meaningful access to bail, supported by accurate and impartial bail reports, changes lives for the better. In 2018, I remember speaking with Rosalyn “Bird” Holmes, then 16 years old, who had spent 40 days in adult detention with no formal indictment filed. After my organization posted her bail, Bird returned home to her family, went back to school and got a job. Several years later, the charges against her were dismissed — an outcome her attorney partially credited to her pretrial freedom.

As I reflect on my father’s life and honor his legacy, I urge the Supreme Court to take up the Franklin case and resolve the threat it poses to equal justice in our courts. Our bail system has tremendous power over the entire criminal legal system. Dedicated advocates and activists have made significant strides towards ensuring the presumption of innocence that bail helps protect.

We can’t turn back the clock now. Letting the Franklin decision stand would erode public trust in the legal system, cripple courts’ ability to fairly determine bail conditions and thwart decades’ worth of meaningful bail reform.

Kerry Kennedy is president of Robert F. Kennedy Human Rights.