Bail and Public Safety in Santa Clara County

As I have been developing the reading assignments for class (and doing my own research), I have been amazed that critics of the bail bond industry have not put front and center the argument that bail bonds do not promote public safety. Instead, they seem to take for granted that the argument should only be about which form of pretrial release is best at preventing a defendant’s failure to appear (FTA) in court.

I can understand why proponents of commercial surety bail—that is, bail bonds, as opposed to other forms of pretrial release that, technically, are also “bail”— focus primarily on FTA. Bail bonds seem to do comparatively well at that. Empirical work by Thomas Cohen and Michael Block focus on FTA (and long-term fugitive status) and show that bail does well at preventing FTA compared to own-recognizance release (OR) and supervised OR. The main study that includes pretrial rearrest rates as an outcome, however, concludes that rearrest rates by release type “vary little.” (pdf, FN 58)

Yet the most comprehensive critique of these empirical studies (and others) makes no argument about FTA as the predominant metric, choosing instead to criticize studies’ methodologies and conclusions. The public undoubtedly cares about not just whether defendants appear in court, but what they do while they’re out. If we are concerned about public safety, then we must discuss what effect bail bonds have on public safety, measured most easily by pretrial arrest. In Santa Clara County, defendants released on commercial surety bail are roughly ten times more likely to be arrested than those released on OR or supervised OR.

A few words initially about the way commercial bail bonds work, as opposed to an individual paying the full amount of bail in cash. This is all based on California, but other than the states that have outlawed commercial bail (Wisconsin, Oregon, Illinois, and Kentucky) it’s a decent approximation of what happens elsewhere. Let’s say bail is set at $10,000, and our defendant—call him Johnny Cash–is going to pay the bail money himself. He has to put up the full ten grand in cash (or property equivalent) and deposit that with the court. If he fails to appear, he loses all of that money immediately. If he appears, it takes him some time to get that money back from the court.

Let’s now look at another defendant, call him—of course—James Bond. He finds a bail bond company that is willing to post a bond for his release. This doesn’t require any money from the bail bond company to be deposited with the court—they just have to write an instrument promising to pay if James doesn’t appear, and to have that amount in the bank. They don’t actually pay the court any money. Instead, they get it—from James. He has to pay the bail bond company a non-refundable ten percent deposit. Once he pays it, he’s never getting it back, whether he appears in court or not. If James doesn’t appear, the bond company gets an extension to look for him, but as long as he eventually appears, bail is exonerated and the bail bond company owes nothing to the court. To summarize: with cash bond, individuals pay the full amount to the court, lose all of it the moment they fail to appear, and have to do something to get their money back even if they’re entitled to it. With bail bonds, the bail bond company gets ten percent immediately, doesn’t have to pay anything to the court, and gets an extension if James Bond fails to appear.

You can see initially that the commonly held notion that commercial bail gives the defendant “some skin in the game” is actually not true. The defendant’s deposit, once paid, is gone. It is true that sometimes a defendant’s relatives will pledge property that costs the full amount ($10,000, in our hypothetical), and that this can be collected on—but it’s also true that sometimes bail bond companies cut installment plan deals where a defendant can pay much less than ten percent to get out. The only real skin in the game comes with cash bail—but most defendants don’t have ten thousand dollars (or whatever amount) lying around. Officials in Santa Clara have told us that very few people pay cash bail.

Bail bond companies have no incentive to keep people out of trouble while they’re out in the community. As long as James Bond shows up to court, the bail bond company won’t have to pay the full amount. It does not forfeit the bail amount if he gets arrested. (As future posts will show, of course, actually collecting the full money bail amount from a bail bond company—a process called bail forfeiture—is extremely complex, while collecting from an individual is easy—the court just keeps the money.)

From the bail bond companies’ perspective, it might, ironically, be preferable for a defendant to get arrested for a new offense. Going back to our hypo, James Bond got released on charge one because the bail bond company pledged that he would appear in court to face charge one. If, a week later, James gets arrested and brought to jail on a second charge, the chance that he is not going to appear in court on the first charge is zero. He is under lock and key in the county jail, so he will certainly make his court appearance on the first charge. This removes any risk that the bail bond company will have to pay the full $10,000 bail on the first offense.

So what do the numbers say? As I mentioned, there aren’t many studies that actually look into this. In addition to the study referenced earlier, there are some federal data on the subject (pdf, go to page 9). According to these numbers, OR has a 17 percent rearrest rate; commercial surety bail has a 16 percent rearrest rate. But this encompasses a variety of release screens and a variety of pretrial services—or perhaps no pretrial services at all.

In Santa Clara County, however, defendants are assessed with a risk assessment tool, and some are given additional conditions designed to keep them out of trouble. On a public safety basis (measured, again, by pretrial arrest rates), commercial surety bail loses bigtime. Defendants released through pretrial services on their own recognizance (or supervised OR) get a new arrest 1.7 percent of the time (or 3.6 percent of the time) respectively. The number for bail is 29.4%. Let me repeat: defendants released on commercial surety bail are roughly ten times more likely to be arrested while on release than those on OR or supervised OR. The FTA rates are comparable; the public safety figures (using new arrests) are a slam dunk against commercial bail. Lest one think this is simply cherry-picking on behalf of pretrial services, the total release figures are about 1260 for recognizance of both types and 269 for money bail.

Looking at the federal study, then, even if you just let people go, the rearrest rates are similar. If you’re judicious about who you let go—even if you let go of a lot of people—you can do much better than commercial bail to improve public safety.

It’s clear that the discussion needs to include public safety, not just FTA. I certainly think that most citizens care what the accused are doing when they’re out, not whether they show up for court (and, moreover, some folks don’t show up for court not because they’ve absconded, but because they forget, they have transportation issues, etc.). So why don’t we talk about it?

One reason might be that the United States Supreme Court cases on bail—at least bail as it is mentioned in the Eighth Amendment of the Constitution—frame it only in terms of FTA. (See, e.g., Stack v. Boyle: bail set at an amount higher than that “reasonably calculated to fulfill this purpose [appearance in court] is ‘excessive’ under the Eighth Amendment.”) I should note, however, that Stack v. Boyle predates the 1984 Federal Bail Reform Act, which, inter alia, authorized pretrial detention if no release conditions would reasonably assure “the safety of any other person and the community.” The part of the statute authorizing pretrial detention on the basis of public safety was upheld in United States v. Salerno.

In California, though, the answer is much easier: Penal Code (s) 1270 explicitly says that public safety is not merely a consideration, it “shall be the primary consideration” when setting bail (emphasis added). A state court Judge (Curtis Karnow) has written an accessible, persuasive argument about why this is practically impossible, but it at least suggests that, when California is considering how to release people, it think about more than just FTA. Considering the public safety effects of the commercial bail industry is not just good policy for California—it’s the law.


Forfeiture in California: a $150 Million Dollar Question

Numerous articles over the years have thrown around a particular number– $150 million – the supposed amount of unpaid bail money owed to the state of California by various bail bonds companies. NPR reported, without attribution, that California bondsmen “owe counties $150 million that they should have had to pay when their clients failed to show up for court.” As it turns out, this number possibly represents the estimated amount of unpaid bail owed to Los Angeles County over a period of about 4 to 5 years according to one lawyer from an LA Times story published over a decade ago. The true amount of money owed to California counties is unknown, difficult to discover, and is possibly much more than $150 million. A lack of a concrete source or data for this figure reveals that it is speculative and unsubstantiated at best, and totally inaccurate at worst. A search for the figure on WestLaw in the context of California bail forfeitures yielded nothing. Preliminary research has also shown that the forfeiture processes used by counties to get the money owed to them are complicated and time consuming, which gives bonds companies an incentive to stall with litigation until the county essentially gives up. The LA Times article mentions this is as well as an eventually failed senate bill that sought to require the bond agency to place the bail money in escrow prior to a defendant’s release. What began as a simple search to fact-check a number has revealed a long-running controversy around the efficacy of counties securing bail money that is statutorily owed to them by bail companies when their client’s skip a hearing or proceeding.

I plan to contact and study particular counties – at least the most populous 10 – to find out how each county goes after the money it’s owed and whether or not each county knows how much it’s owed. This research will provide information and data that can inform policy decisions regarding the efficacy of money bail in California at the county level.

My name is Sean Reichhold and I am a 2L at Santa Clara Law. I’m a Bay Area native whose legal interests include criminal advocacy, policy, individual liberties. I’m also a trained journalist who loves research and debate.

Implementing Risk Assessment Tools: Benefits and challenges in Santa Clara County and Santa Cruz County

After taking a training on unconscious bias and its effect on decision-making, I became intrigued about validated risk assessment tools meant to offset this effect in pre-trial determinations. These tools have been adopted nationally throughout different counties. I will be comparing and contrasting Pre-Trial Services in Santa Clara County to the Public Safety Assessment Pilot program in Santa Cruz County and their use of validated risk assessment instruments. I then want to determine how the instruments are implemented and analyze to what degree judges deviate from the recommendations of these agencies and why. I want to observe whether the prosecutor influences the judge’s decision to deny or set bail at a certain amount and whether public defenders raise Eighth Amendment “excessive bail” challenges. In the midst of this process, I want to evaluate whether the financial circumstances of the accused are ever considered—in theory or in practice.

My name is Carlos Barba and I am a second year law student at Santa Clara University School of Law. I was born and raised in Watsonville, California, a city in the south part of Santa Cruz County, predominantly comprised of low-income immigrants. I’ve witnessed how our current bail system disproportionately affects low-income individuals and their families, which is why I am interested in criminal justice reform. My goal this semester is to provide new information about common bail practices and assess the effectiveness of these practices in order to influence policy.

Propagating Mental Illness in the California Jail System

Approximately 71% of jail inmates in California are pretrial detainees. Pretrial detention is supposed to be limited to individuals who pose a risk to public safety or are unlikely to return for their court date. About 17% of people entering the nation’s local jails for pretrial detention meet the criteria for serious mental illness. In many communities, people with mental illnesses remain in jail for considerably longer than those without mental illnesses, despite facing similar charges and posing no more of a flight risk or danger to society. Pretrial incarceration of the mentally ill results in a reduced chance of recovery and stability in the community and is a large cost on taxpayers. In some areas, pretrial inmates wait months for court-ordered mental health services, which can be detrimental to their recovery. As of 2015, Santa Clara County Jail reported having six full-time psychiatrists for the approximately 1,300 inmates with mental disabilities. There are about 139 beds for inmates with severe mental disabilities. What happens to the other 1,161 inmates in need of mental health treatment? What impact does pretrial incarceration have on their mental health? What can we do to save taxpayers money and avoid propagating mental illness in the criminal justice system? These are the questions I will be attempting to answer this semester in Criminal Law and Policy.

My name is Arielle Hostetler and I am a Bay Area native. At the University of California-Santa Cruz, I studied the intersection of psychology and law. There I learned that the justice system had the ability to create a more equal society because it came into contact with the people who needed the most help. But, instead, the justice system has failed on its promise to control crime, reduce suffering, and rehabilitate. Before law school I worked at the Santa Cruz Public Defender’s Office, the International Rescue Committee, the Peace Corps in China, and the Atlanta office of the American Civil Liberties Union. I am currently a 2L at Santa Clara University School of Law, where I hope to use my real-world experience and academic background to effect change in the criminal justice system.

The Other Bail System: Immigration Detention and Immigration Bonds

My name is Lizbeth Mateo. I am a 3L at Santa Clara Law with an interest in employment and immigration law. Prior to coming to law school I worked with undocumented immigrant families to fight against the deportation of their loved ones. My research will focus on immigration bail, not only because of the work I have done in the past but because being an undocumented immigrant myself makes this an issue that directly impacts me and my family.

When I started thinking about bail and how it works in the immigration context, I realized how little I know about the topic and how little information is available to the public. Since 2007, the national average daily detainee population has been more than 30,000. In fiscal year 2015 alone 406,595 immigrants were detained. A number of those detained were able to reunite with their loved ones either by posting bond or because they were released under their own recognizance – a promise to return to court for further proceedings. It is unclear, however, how many were released in this way— federal population statistics do not include the number of releases, and the numbers on the Transactional Record Access Clearinghouse (TRAC) website do not reflect these numbers either.

My research will be divided into three prongs. First, I will explain how immigration detention and immigration bail works by comparing it to the criminal system. Then I will focus on the issues immigrants face when trying to post bail – from the potential high bail amounts, the lack of resources to pay that money, language barriers when contracting with bail bond companies, and whether bail bond companies have different contracts or regulatory requirements for undocumented immigrants in ICE custody. I will also look at the state and federal regulatory framework for immigration bond services. I will conclude by focusing on pre-deportation release – the possible alternatives to immigration detention and bail, the cost of these alternatives, and the impact they may have on the detained immigrants and their families.  



Bail Forfeiture in California: How it Works and Why it has Become so Complicated

The American for-profit bail industry has produced a litany of problematic policies and results over its lifespan. The industry has been able to take advantage of extremely complicated processes to further its primary objective – namely, profit. Reform efforts are taking hold around the United States, in New Jersey and Kentucky, for example. Amidst these changes, it is important to see the inner workings of the industry. Specifically, I will be looking at how difficult it has become for California’s courts to recover forfeited money bail from bail bond companies. I hope this work will facilitate policy oriented toward defendants who cannot afford to pay their way out of jail, not the for-profit surety bail industry.

My name is Julian LaCasse; I am a JD candidate at Santa Clara Law. Last semester, I wrote for the Drug Law and Policy Blog. I majored in poetry writing and philosophy at Gonzaga University. I like to spend my time surfing, eating, reading, and cooking, not necessarily in that order.

Criminal Injustice: Attempting Reform with Prop 47

Isn’t it an outrage that one of the richest, industrialized nations on this planet incarcerates more people per capita than any other nation on Earth? This reality is indicative of an overly-punitive culture that neglects mental health, drug abuse, and poverty issues by simply locking up people. Common sense dictates that for social and financial reasons, we must lower our prison and jail populations.

So who should we release? In California, voters enacted Prop 47, which reclassified certain felonies, felonies commonly associated with non-violent drug addicts, into misdemeanors. These new misdemeanors are the possession of concentrated cannabis, cocaine, heroin, and methamphetamine. The remaining misdemeanors are shoplifting, forgery, fraud, receipt of stolen property, and car theft of items valued at $950 or less.

When someone commits a misdemeanor, if the arresting officer believes that there is a reasonable likelihood that the individual will continue committing the offense or that the individual presents a harm to property or other persons, the officer may arrest and book the individual. Then, the individual is held for up to 48 hours at an arresting agency (the sheriff’s department, police department, or wherever the individual is booked), is brought before the judge and told of his charges, and then held in county jail until trial unless the individual can post bail.

Absent these factors, the offender must be released. The arresting officer must simply “cite” the offender, or give written notice of their duty to appear in court on a particular date. This mandate is designed to keep many non-threatening drug users as possible out of jail where their mental health is more likely to deteriorate and their rate of recidivism increases.

Some California law enforcement officials complain that Prop 47 only allows them to cite and release these particular offenders. Allegedly, this prevents the officers from stopping the cycle of petty theft and drug abuse. As Kirk Albanese, deputy chief of the Los Angeles Police Department, states, “It’s a vicious cycle . . . [the offender has] an addiction, we are not holding you accountable, and you’re back into the cycle of using. How do you support that habit? Stealing. Our burglaries are up, car theft is up, break-ins are up—they are all up.”

This blog series intends to identify some disconnects between Proposition 47’s language and its implementation by law enforcement, with a focus on the way in which Prop 47 affects local jail and pretrial populations.

As a second year Santa Clara University law student and Santa Clara County native with an educational background from UC Berkeley, I have become more aware of a marginalized population affected by poverty, drug abuse, and mental illness. I want to educate myself regarding California’s latest initiatives for criminal justice reform and become an advocate for indigent clients who are often segregated from society by social stigma and incarceration.


Debtors’s Prison: How Fines and Fees are keeping the Poor Locked Up

Our nation’s citizens are plagued with a persistent wealth inequality from coast to coast that has infiltrated the entire nation, including within the criminal justice system. I will be writing about the various fines and fees that the criminal justice system imposes on criminal defendants that perpetuates the wealth gap both pre and post-trial. Money is a key factor to answering whether someone spends a night or year in jail or is free to go home; whether someone has the opportunity to participate in a diversion program and potentially get the help they need; and whether one mistake can cause an individual endless and insurmountable debt. I intend to shine light on the way that the criminal justice system has utilized money, or lack thereof, as a proxy for punishment across California. I will also be discussing various fines, fees, and bail systems throughout the nation, juxtaposing them with California’s current procedures.

I’m Vicky Perry, a second year student at Santa Clara Law. I previously studied justice studies and human rights at San Jose State and am furthering my studies in criminal justice at Santa Clara by working towards obtaining a Public Interest and Social Justice Law Certificate. I intend to use my B.S. and anticipated J.D. to practice criminal law, focusing on alleviating the inequalities that the current justice system perpetuates.

Judging Judges: The Role of Judges in Bail

Judges are responsible for setting a county’s bail schedule and for making individual bail/release decisions. My research will focus on the legal and policy questions surrounding judges’ role in bail, as well as some nuts and bolts questions about the bail determination process. What information do judges have about a defendant at the time bail is determined? What kind of training, in bail determination, if any, are judges given before or during their time on the bench? By answering these questions we attempt to better inform or train judges in problem areas.

My name is Sarah Saldivar, and I’m a current 2L at Santa Clara University School of Law. I majored in criminal justice and political science at Chico State University. Inspired by this area I am seeking a career in criminal law, especially with indigent clients. I am a native Californian who is passionate about the future of this state especially in regards to the issues with bail in both our state and the County of Santa Clara.

Terms of the Agreement: Looking at Contracts between Bail Agents and the Defendant

My topic for the semester is going to focus on the bail bond agencies, specifically the contracts between a bail agent and the defendant. I am going to be looking at contract formation between these two parties. Some of the questions I would like to answer in my research include: what each side is agreeing to, how often a contract is actually signed, what are the minimum requirements a defendant needs to meet in order to be granted a contract, etc. Another issue under bail contracts I will be looking into is what, if anything, happens if there is a breach of this contract? Is bail forfeited? Are the defendants still liable to pay if bail is exonerated? Do bail agents “double-dip?” In other words, do they go after the defendants for money more than once? If the contract between the defendant and the bail bondsman is a civil contract, then why is the remedy for breach of contract a criminal penalty, being put back into custody? Ultimately I hope to answer these questions and more, while increasing my understanding about the private bail bonds agencies in California.

My name is Zina Zaia and I am currently in my second year of law school at Santa Clara University. Since I have been in law school, my internships and class electives have centered on criminal law, specifically criminal defense and helping the indigent defendant. My research and writing for this policy class on bail will be a continuation of that trend. My hope in researching my topic is to gain a better understanding of a large part of the criminal justice system that disproportionately affects the indigent defendant.