May 1st, 2017

Mary Ellen Heng doesn’t think a bank account should dictate how long someone spends in jail.

Yet throughout her career, the deputy Minneapolis city attorney has repeatedly seen exactly that: people lingering in Hennepin County jail because they can’t afford a $78 bail.

“I don’t want to see that as a prosecutor,” she said. “I don’t want someone simply sitting in jail on a low-level misdemeanor because they can’t post. That’s not what the law requires.”

For the past year and a half, Heng has been working behind the scenes with a group called the Adult Detention Initiative, a collaboration of judges, prosecutors, defense attorneys, police and others in the Hennepin County justice system looking for creative solutions to inequalities that disproportionately affect low-income or mentally ill people accused of crimes. The purpose, they say, is to make sure the right people go to jail and the wrong people do not.

Veteran public defender Jeanette Boerner says a “gap” in the jail system is an example of how the system can incarcerate “the poor and not the dangerous.” It occurs in how a defendant’s risk is determined. When a person is arrested for a gross misdemeanor — for example, some cases of driving under the influence of alcohol — he or she will be automatically subject to a system that measures the chances of returning to court and potential threat to public safety. If both risks are low, the person may be released on no bail.

But no such process exists for misdemeanors — lower-level nuisance crimes like trespassing, possession of drug paraphernalia or running from an officer on foot. “They don’t get out,” said Boerner. “Nobody’s looking at their risk.”

Instead, these people are brought to jail and automatically hit with $78 cash bail — less than even the $132 per night it costs the county to house them for a night in the facility. If they can’t afford to pay, they sit there until they are due before a judge. Sometimes that takes days.

“You have a large number of those people who are poor,” said Assistant Chief Judge Todd Barnette. Many are released without bail after seeing a judge. And in the meantime, they risk losing their jobs because they can’t show up to work.

Barnette and others believe a solution already exists. The initiative wants to take a risk-assessment tool currently used for measuring social service needs for people admitted to the jail and apply it to bail risk. Once the proposal is complete, they are hoping to implement it with the jail, which would require the courts to make a new directive to the jail and probation system.

Hennepin County Sheriff Rich Stanek, also part of the initiative, said he’s been pushing for this change for three years. “It’s one thing if they’re a threat to society, and it’s another if they can’t afford the bail,” he said. “It gets around to that issue of fairness.”

Members of the initiative hope this change could get people who don’t belong in jail out quicker. It could also cut down the unintended side effects of people feeling pressured to taking a plea deal just to get out of jail.

“I just never want to see someone plead guilty because they can’t afford to get out,” said Boerner. “If that could be the one thing I did before I retired I would feel like my mission was accomplished.”

Every year, roughly 33,000 people are booked into Hennepin County jail. Of those arrested on low-level misdemeanor offenses, more than half spend a median period of less than a day in jail, according to data from the initiative.

One of the Adult Detention Initiative’s early revelations was seeing how many people were going to jail for failing to appear in court on minor offenses. In 2015, of the roughly 22,000 warrants issued by Hennepin County judges because a defendant failed to appear in court, the vast majority — about 17,000 — were for low-level misdemeanors. The group suspected that many of these defendants didn’t know they had a court date — especially those without permanent addresses.

“Those are the lower-level offenders who often are struggling with homelessness, always poverty and addiction,” said Boerner. “And you know, you’re not particularly concerned about the summons in the mail or where you’re going to get that mail at that point.”

So the group helped set up a pilot to start calling, texting and e-mailing with reminders for defendants for appearances. The courts are now in the process of making an automated system similar to emergency notification apps used by colleges.

The initiative has also changed the directive for police officers who encounter someone with a warrant for failing to appear in court. Instead of arresting these people and bringing them to jail, officers give them what’s called a “sign-and-release” warrant, which gives the individual a new court date and a second chance to show up. If the person fails to appear again, then an arrest warrant with bail is issued.

From July to December 2016, of the 539 people given a new court date, about 68 percent showed up, according to data collected by the group, which Heng counts as early evidence that the changes are already working.

“I think that is something that we’ve learned, that given the chance, most people want to do the right thing,” she said.