Taking a Closer Look at Bail Contracts

Picture this: You just got arrested. You’re in jail, most likely scared and have no idea what is going to happen. Within a few days, you go to court for your arraignment. Since you can’t afford an attorney, a public defender is there to represent you. Your case gets called and you go before the judge. After a quick five minutes of legal talk that you don’t quite understand, the judge sets your bail at $15,000. Both you and your family don’t have that kind of money, so your next option is to find a bail bondsman to post your bail for you. At this point, you just want to get out of jail. You call a bail agent who tells you that if you come up with 10% of your bail amount, $1,500, he’ll put up the rest. You can come up with $1,500, so you agree. The bail bondsman tells you that you must come down and sign the contract within 2 days of being released. You agree immediately because you’re getting out of jail. Chances are you aren’t thinking, “What did I just agree to?”

This post is going to look at exactly what the person in the above hypothetical agreed to in order to gain his or her freedom. My next post will look at the legal grounds and implications of this contract, including whether the following contract terms are enforceable and if any consumer protection laws exist to protect defendants in these contracts. In my research, I was able to look at three standard bail contracts from different bail agencies, including Bad Boys Bail Bonds, Bail Hotline, and Vu Bail Bonds whose contract can be found here. For the most part they all had the same terms in the contract, with a few deviations, but I will discuss the terms common to all three.

First, the bail contracts contain certain words or phrases that I will define: “First party” refers to the person paying the bond: it could be the defendant or someone who is willing to be a co-signor and is bound to the same contract. “Second party” is the bail bond company, and the “principal” is the defendant. A “surety” is the insurance company that is backing the bail bond company. My colleague, Ruby Renteria, defined “bond” as “a formal written agreement in which a person undertakes an obligation(s).” “Collateral,” usually consisting of property, such as real estate or cars, can be required by the bail company. The bail agent can take possession of the property if payments aren’t made.

In the standard bail contract, most people agree to pay a non-refundable “stated amount”, which is 10% of the bail amount that the judge set. In our hypothetical, this would be the $1,500 mentioned above. This term is usually the first term both parties agree to. The sample contract from Vu Bail Bonds uses this language:

To pay ‘stated amount’ per annum for this Bail Bond. The fact that Defendant may have been improperly arrested, his bail reduced, or his case dismissed, shall not obligate the return of any portion of said premium.

This part of the contract probably doesn’t surprise you; it is what the parties agreed to, and it explicitly states that the money is non-refundable. However, the word “annum” should be surprising. The contract explains this term in the next line,

This bond is renewable each year. First Party agrees to pay to Second Party a renewal premium in the amount stated above, twelve months after the date on which this Bond was executed. If said renewal premium is not paid upon written demand, second party has the right to surrender Principal, as provided in the CA Penal Code §1300.

This means that if you paid 10% to get out of jail, and your case gets continued in court, as it usually is, a year later you are required to pay another 10% of your bail. The way our court system works today, it is not uncommon for cases to take more than one year to get resolved, so even though you aren’t even in jail anymore, you still have to pay another 10% of your bail or else you will be returned to custody.

The hidden expenses in a bail contract continue on from there. The second term of a standard bail agreement states,

To reimburse Second Party and Surety for actual expenses incurred by Second Party or Surety in connection with the arranging and/or execution of Bail Bond or renewal or substitution thereof whether or not said Principal refuses to be released after arrangements have been initiated by Second Party.

In simpler terms, you are essentially agreeing to pay the Bail Bond company costs associated with them securing your bail. Further, after the company has started the process of obtaining your release and you decide for whatever reason you don’t want to be released, you’re on the hook for those costs as well.

What if in the midst of trying to secure your bail, you left out pertinent information or misrepresented some information about yourself in your initial conversation with the bail bondsman? Well, there are contract terms that cover this scenario as well. If the bail bondsman feels it is necessary, he can come after you for the full amount of your bail. In the middle of our sample bail contract, the fifth term states,

To pay second party or surety as collateral upon demand, the penal amount of Bail Bond whenever Second Party or Surety, as a result of information concealed or misrepresented by the First Party or Principal or other reasonable cause, any one of which was material to hazard assumed, deems payment necessary to protect the Second Party.

A quick definition may help: “penal amount” is money bail the judge set for the defendant to pay to obtain his release. In our hypothetical, the penal amount is $15,000. The enforcement of the nondisclosure/misrepresentation term is completely up to the discretion of the bail bondsman, subject to state regulations, and the defendant is at the mercy of the bondsman to not invoke this term.

Finally, after the hidden fees and costs that you most likely weren’t aware of when making the agreement with the bail bondsman, the last term of a bail contract states,

The surety or its representatives shall have the right to examine the credit history, department of motor vehicle records, employment history, books and records of the undersigned, or assets covered by the bond, or the assets pledged as collateral for the bond.

Agreeing to this term means you are handing over access to private information about yourself, and the reality is, you’re agreeing to this so you can gain your freedom. Even more troubling is the reasoning why the bail bondsman wants this information. They require this private information so they are able to track you down if that becomes necessary. What is ironic about this situation is that to gain your freedom, you’re actually sacrificing a whole lot more than you first expected in order to gain that freedom, including your privacy and the privacy of your loved ones. While this sacrifice is troubling, your freedom is worth it.

In my next post, I will be looking at the legal implications of these terms, including if they comply with state law and whether there are any consumer protection laws to protect the defendants.



The Prosecutor’s Role in Pretrial Release: An Analysis of Van Atta v. Scott

At first glance, a prosecutor does not appear to play much of a role in the bail and pretrial release procedures. Under California law, everyone is entitled to monetary bail that is set according to a master schedule. That schedule is created annually by judges in each individual county. The decision to increase or decrease that amount, or to release a defendant on his or her own recognizance (OR) prior to trial, is entirely within the discretion of the trial judge. It used to be the case that a judge could set a bail amount that far exceeded what an individual could pay as well as deny that individual’s request to be released on OR without the prosecution so much as lifting a finger. That all changed with the 1980 California Supreme Court decision, Van Atta v. Scott. Continue reading “The Prosecutor’s Role in Pretrial Release: An Analysis of Van Atta v. Scott”

Forfeited Bail: How Much is Forfeited Per Year?

Suppose a criminal defendant posts a surety bond with the help of a bail bond agency. Typically in this case a defendant pays 10 percent of the bail amount to the agency, and the agency promises the court – via surety bond – that the defendant will show up to his required court appearances or else the agency will be on the hook for the entire bail amount. If the defendant fails to appear and cannot be located by authorities or a bail company within a year, that defendant becomes a long-term fugitive.

If all goes according to plan – at least the plan set out in California’s bail forfeiture statute – then the bail agency must forfeit the entire amount of bail to the county where the defendant in question was supposed to appear. How often does this occur? Do bail agencies pay the full amount when their client’s skip an appearance and can’t be located? How much of this money has gone unpaid?

Over a decade ago, a lawyer and self-proclaimed bail expert stated for an LA Times article that the amount of unpaid bail in California is between $100 – $150 million. The article gives no indication of how the lawyer got this figure. The reason why this figure is particularly interesting is because it has reared its head in other stories regarding bail forfeiture over the years, each of which takes the number at face value. For instance, a 2007 article on PrisonLegalNews.org states that LA County missed out on $9.1 million in bail forfeitures from 2001 to 2003, the majority of which one company, Capital Bonding Corp., was responsible. The same article also states the $100 – $150 million figure again, without explaining where it got that figure. Further digging to find out where the writer got these numbers has been fruitless.

More recently, an in depth NPR article on the efficacy of money bail published in 2010 also asserts the amount, writing without explaining that “[i]n California, bondsmen owe counties $150 million that they should have had to pay when their clients failed to show up for court.”

Is this number even close to accurate? There are two sources likely to have the best information to answer this question: bond companies themselves and individual counties. While my next line of research will involve posing questions to both of those entities, for now it is worth coming up with a broad estimate of how much money is owed to California as a whole in forfeited bail per year. This requires data on the rates of failure to appear, the rates of long term fugitive status and the median and average bail amount in California. I am using the long term fugitive rate for my math because it is the closest figure we have that roughly represents the number of cases where a bail agency has to pony up. Although bail can be forfeited for a number of reasons and at almost any time during the procedure, a long term fugitive case will be the most likely case where bail companies will have to pay. I am also assuming that the average figure will be more accurate than the median for purposes of estimating how much forfeited bail is owed.

According to the Public Policy Institute of California, the median bail amount in California is $50,000 – five times larger than the rest of the country. However, also according to the PPIC, average bail in California hovers around $33,000, with the most recently confirmed average being $32,000, calculated in 2012. For my estimate I will use the 2012 average bail amount with the assumption that it has not changed significantly in the last 4 years. According to the same PPIC study, California’s failure to appear rate is 6.6 percent across the board for all offenses.

A trickier figure to nail down is the rate of long-term fugitive status in CA.  The closest data point I found came from a study by Eric Helland and Alexander Tabarrok which states that at the national level – not California alone – 30 percent of failures to appear remain at large for over a year, thus becoming long-term fugitives. For lack of data particular to California, I will use this figure to help with my rough estimate. PPIC has calculated the rate of release on surety bond to be 21.1 percent. With these figures, we are finally ready to crunch an ugly number.

In 2014 there were 1,212,845 arrests in California. I will start with that number and assume 21.1 percent of those arrests result in financial release, getting us down to around 255,910 defendants released on commercial surety bond per year. Let us now assume that of this number, 6.6 percent of them fail to appear – giving us 16,890 failures to appear. Using the nationwide figure, for lack of data, let us further assume that 30 percent of those failures to appear remain at large for over a year, making them long-term fugitives. That gives us around 5,067 long-term fugitives per year whom we can assume had their bail completely forfeited – which means now the bond company is on the hook for that amount. With an average bail amount of $34,000, we can roughly estimate that bail companies should forfeit around $172,278,810 per year to California counties.

Compared to the oft-repeated figure of $150 million – a number that represents the accrued owed money over an unknown period of time – this is a staggering number. And although, as I have admitted, this estimate is very rough, at least one consideration should be discussed, and that is the long-term fugitive rate. Helland and Tabarrok stated that the 30 percent long-term rate is alarmingly high, and there is reason to think that California’s is much, much lower, especially considering the success of bail companies in California and their success at securing and returning defendants who fail to appear.

However, even if we assume the rate of long-term fugitive status is much lower, or halved, and even if we assume that most of those 21.1 percent who secure financial release are released via cash bail and not surety bond, we can still conservatively assume that bail companies are expected to pay California counties tens of millions of dollars per year in forfeited bail.

Do they? I will have to speak to bail companies and the county counsel of various counties to find out. My next post will examine whether either bail companies or individual counties are even keeping track of whether or not this money is being paid.

Privatization of Money Bail

What I hear about bail agents (often called bail bondsmen) is that they provide a valuable service and keep our communities safe at no cost to the taxpayer. According to the bail bond industry, they are dedicated to developing best practices that should lead to: maximizing the pretrial release of criminal defendants; minimizing days between arrest and pretrial release of criminal defendants; and protecting public safety. Facially, it seems to make sense – aren’t those goals precisely in line with the service provided? Confusingly, both commercial bail industry insiders and those in opposition to money bail (see page 29) point to the same data sources to support their competing (or opposing) arguments. In this post I outline the economic reasoning behind money bail and the role of a commercial bail agent in pretrial release. While proponents of the privatization of money bail suggest that there are gains to efficiency and service, a closer look reveals that legal constraints, profit motives, and shifting responsibility of financial risk away from defendants may actually detract from the goals of money bail as well as the purported goals of the commercial bail industry. This discussion does not address public policy or whether a privatized system for money bail is just. Instead, the focus is on economic arguments that support and detract from the proposition that a for-profit bail system makes fiscal sense.

Because private industry emphasizes efficiency and customer satisfaction in order to improve its bottom line, some public needs such as public transit and communications infrastructure may benefit from privatization. The introduction of competition provides incentives for private businesses to provide better goods, better services, and lower prices. Adam Smith described this effect as an “invisible hand” that guides economic actors to, “without intending it, without knowing it, advance the interest of the society. . . .”

But while most people agree that some industries are well served by privatization, certain other sectors of the economy should not be left to private interests. This is because some public goods, such as the military, are potentially dangerous if left to private actors and other public needs may present a conflict of interest if a profit motive is introduced. Imagine if the fire department had to give priority to profit over saving lives and property. Or imagine that we were concerned only with efficiency and not equity—that would mean that mailing a letter to a rural area would be more expensive than mailing the same letter to an urban one.

Courts rely more and more on financial bail terms; 61% of pretrial releases in 2009 included money bail, up from 37% in 1990. Given this increase, it becomes more and more important to analyze whether privatization of money bail serves the goals of money bail to begin with or if this is one of those areas that should not be exposed to the potential inequities or perverse incentives of a profit driven industry.

To begin with, money bail, in general, is not always an option. Some defendants are deemed too great a flight risk due to the magnitude of the potential sentence, or too great a danger either because of the nature of the alleged crime(s) (e.g., article 1 section 12 of California’s Constitution) or simply because of the type of offense (see Cal. Pen. Code 853.6(a)(2)-(3)). If money bail is set, it is constitutionally protected from being “excessive,” which the United States Supreme Court has interpreted as any amount “higher than an amount reasonably calculated to fulfill the purpose of assuring the presence of the defendant [at trial].”

In the federal system, since the Bail Reform Act of 1984, the safety of individuals and the community are factors in determining bail eligibility (denying bail as “preventive detention”), but the money bail amount is addressed separately. In fact, the Bail Reform Act clarifies in section 3148(c)(2) that “[a] judicial officer may not impose a financial condition that results in the pretrial detention of the person.” (emphasis added). The General Accounting Office found that the introduction of preventive detention resulted in 49% of defendants remained in federal pretrial detention as ineligable for money bail (which leaves 51% detained because they “failed to pay the bail set by the court”).

In California, the magistrate setting money bail amounts must take into account public safety. This is probably because, unlike the federal system described above, California law does not allow preventive detention for public safety reasons. Some people have questioned the validity of the idea that money bail can or does promote public safety. Judge Curtis Karnow writes that “there is no relationship between the dollar amount of bail and any in terrorem inhibiting effect that would deter future criminal conduct by the defendant.” Rather, other bail conditions can address public safety, such as supervision, GPS monitoring, mandatory drug tests, enrollment in a rehabilitation program, and the like. For this, and future, posts I agree with Judge Karnow’s analysis and address the economics of money bail by assuming that the purpose of money bail is purely to address the potential failure to appear of a defendant.

Because public safety is not a factor in money bail (at least in the federal system, and in general by the assumption above), commercial bail agents have at most a very limited role to play in public safety.   The service provided by the bail industry is a safeguard against failure to appear, the very thing that money bail is supposed to provide without a private industry. This is because there are different ways in which money bail can be arranged. For example, collateral, usually in the form of cash, can be given to the court and returned when the defendant appears at all court dates. More commonly, a private bail agent will put up a promissory note to the court in exchange for a 10% fee from the defendant and, in theory, if the defendant fails to appear the agent is responsible for the money bail amount. I will focus on this second form of money bail, called commercial surety bail.

Looking at the function of bail, it is clear that the bail industry does not have much to add. Our system decides on a dollar value that a defendant must pay if they fail to appear – reasoning that this financial risk will ensure their appearance. Then, instead of having the defendant actually take on that financial risk, we have them pay a nonrefundable fee to a commercial bail agent. The defendant is now out usually 10% of their bail amount, and now their risk is to the bail agent, usually in the form of collateral for the full 100%. Keep in mind that the 10% is just the bail agent’s fee, in the event of a failure to appear the bail agent can collect the full 100% from the defendant either alone or in combination with any co-signors. At the same time, the bail agent has assumed the financial risk due to the court, but is both covered by the defendant (and co-signors, as mentioned) and also by their surety provider (an insurance company that, usually in exchange for a percentage of the bail agent’s fee, indemnifies the bond). It is worth noting that a bail agent is usually licensed and defined by law as an agent for a surety provider.

In short, it appears that not only do commercial bail agents fail to provide the safety that their industry claims, but by absorbing the financial risk of the released defendant it is plausible that an agent might actually negatively effect the behavior of a released defendant. In subsequent posts I will address commonly cited privatization benefits, and analyze whether these are true for commercial bail bonds. These reasons include, among others, saving taxpayers’ money, increasing flexibility of service, improving quality of service, increasing efficiency and innovation, allowing policymakers to focus on policy instead of procedure, streamlining and downsizing government, and, of course, the appearance rate of money bail defendants in court.

Setting the Stage for Judges’ Role in Bail

Imagine you are an attorney that has practiced tax law for the past twenty years. You are known to be a well-respected and diligent attorney in this area of law. Now you have decided to take the next step in your legal career and become a Superior Court Judge. The qualifications to become a judge in California are as follows: to be a United States citizen, a resident of the State of California, and a California licensed attorney for ten years. An attorney can be appointed to the bench by either a nonpartisan election or the Governor of California can appoint you. Each new trial court judge and subordinate judicial officer (commissioner) must complete the “new judge education” before taking the bench. New Judge Education is required by all “new” judges and includes the New Judge Orientation Program and Judicial College. As a new judge if you are assigned to go to criminal court you will have to get up to speed on procedural and substantive law that you were not exposed to as a tax attorney-including the law of bail.

What kind of training do judges receive before taking the bench?

Judges have three primary forms of training: New Judges Orientation, an orientation course in his or her primary assignment, and the Judicial College. Judges actually are not required to take much training before hearing cases-they just need to get training within a certain period of time after taking the oath. For example, new judges can hear cases for as long as two years before attending Judicial College.

Rule 10.462 lays out the minimum education requirements for new judges in California. The New Judge Orientation Program (NJO) must be taken within six months of taking the oath as a judge. This is a weeklong program that teaches new judges the basics of the position. A judge can begin hearing cases before NJO, however, as long as the program is taken within six months. Judges are also required to take an orientation course in his or her primary assignment (civil, criminal, family, juvenile delinquency or dependency, probate, or traffic) within one year of taking the oath as a judge or subordinate officer. New Judges must also take the two-week course at the B.E. Witkins Judicial College of California within two years of taking the oath as a judge. However, this training is only offered every summer. This essentially means that a new judge could be appointed in September and be required to hold a calendar for nine months before having the opportunity to attend Judicial College.

Throughout the course of your career as a judge you are required to complete 30 hours of continuing education every 3 years. New judge education courses do not apply to these required hours. At least 15 hours must be completed in live, face-to-face education.

Being a tax attorney newly appointed as a judge you could be hearing cases for six months before having orientation, a year before ever taking an orientation course in this new area of law, and up to two years before you ever attend Judicial College.

Santa Clara County Numbers

Out of the fifteen new judges appointed in Santa Clara County since 2011 four have a previous background in criminal law, nine have a background in another area of law, and two judges were unreported. Now imagine the presiding judge in Santa Clara County decides to assign you to a criminal calendar. Having had a career in tax law this is an unknown area. Many judges sit in watching another judge before taking the bench solo in order to “learn the ropes”. Leading up to your first calendar sitting on the bench as a judge you have possibly attended NJO, maybe sat in for a few weeks observing the calendar, and most likely not yet attended Judicial College. For some judges without an extensive background in criminal law, nine judges since 2011 in Santa Clara County, this may be an intimidating position to be in.

Even those attorneys having an extensive background in criminal law should still be properly trained before taking the bench and engaging in a completely different role. For example, making determinations about a specific individual regarding bail is something no attorney, criminal or not, has had to do during their career. Having the powerful position of determining the future course of someone’s life is not a task to be taken lightly. However, there are resources such training manuals to assist judges in these difficult situations.

How do other states compare to California?

New Jersey is one of only eight states in which no judges stand for election: every judge is appointed. Unique to New Jersey is the Judicial Performance and Education Programs. Included in New Jersey’s Judicial Education Programs is the Orientation Program which is “designed to facilitate the transition of newly-appointed judges from bar to bench and to provide comprehensive training in the State’s judicial practices and procedures.” New judges are also given a mentor judge who they can turn to for information and help during their new role.

The Division Comprehensive Judicial Orientation Programs (CJOP) offers newly appointed and rotated judges immediate training in their new assignments from experienced judge faculty. For example, a newly-appointed Superior Court Judge who is assigned to Family Court is required to complete this program before hearing any case. This program is even offered and required for all veteran judges who are reassigned to a new role from a different division (i.e. criminal).

Clearly New Jersey is not lacking in judicial training for judges. Judges have a wide range of opportunities and requirements in order to be properly trained in their new role before sitting on cases just as California does. The main difference between California and New Jersey is the timing component. The programs offered in both states are very similar and comprehensive. However, in New Jersey new judges are REQUIRED to at least have some training before they hear a case.

When you compare the training practices that judges in California, specifically Santa Clara County, receive to other programs in place such as in New Jersey, you begin to understand how there may be issues regarding judges’ duties, such as determining and setting bail. If newly appointed judges receive little to no training before hearing a case what factors are they considering before making their determinations regarding issues such as bail? What information do they know about the defendant before setting bail? Do judges simply listen to superiors and colleagues when attempting to make difficult bail determinations? These are all questions that I hope to answer with my further blog posts to hopefully understand and attempt to fix problems that judges face when setting bail for defendants.

Jail Classification and How it Relates to Bail

Statistics show that the majority of county jail inmates are individuals who are awaiting trial. Understanding how people are sorted, managed and classified within the jail system is an important step in determining why this is so. Furthermore, important bail decisions and determination are often made at the time of booking and classification. An explanation of the process seems a necessary starting point to further exploration into these subjects.

So imagine you have just been arrested by the San Jose police for some crime. For the sake of this hypothetical, let’s say you stole a garden gnome worth $145 from your old English teacher’s yard. When the police stop you, they catch you red-handed with the gnome. You are handcuffed and put into a police car, and you’re driven to the Main Jail where you go down a sinister-looking ramp to what is known as Lower Booking.

Continue reading “Jail Classification and How it Relates to Bail”

America: The Land of The Free or The Land of Buying Your Freedom?

The criminal justice system in America is broken and has become a vehicle for collecting money from its passengers. Imagine getting arrested and brought into your local jail. What is the first thing that comes to your mind? Mine would be “what do I have to do to get out of here?” Well, the answer to that question is simpler than you probably would have imagined: money.

Most people only associate money bail with the adverse effects that wealth can play when determining whether someone has the ability to stay out of custody. Money bail is only part of the issue, however. Wealth is a catalyst for many injustices across the nation including the criminal justice system. Impoverished criminal defendants are not afforded the same opportunities as their wealthy counterparts merely because they do not have the monetary means. A poor criminal defendant will face many disadvantages throughout the criminal justice system for the sole reason of being poor. Over the next few posts I will discuss some of these disadvantages.

There are a few different ways to be released from custody, depending on what stage of the criminal process you are in: pre-trial, post-conviction, and post-sentence.

In the pre-trial stage, which extends from the moment you have been cited or arrested and booked, through bail hearings and arraignments, to the moment a criminal trial has begun, you are eligible to be released in three ways. The first and most well-known is money bail, the process where you pay a fee in order to be released. The second is release on your own recognizance, without supervision (O.R.) which involves a promise to come back to court and agreement to other various conditions (this includes cite and release). The third is release on your own recognizance with supervision (S.O.R.), where you agree to those same conditions (and more likely others) but the main difference is that those who are released on S.O.R. must check in with pretrial services for drug tests, alcohol tests, and the like.

In the post-trial or post-conviction stage of the criminal process, you may have the opportunity to be released from custody or avoid it all together. This takes form in some of the following ways: you can be put on court probation, which is similar to O.R. in that you agree to abide to terms and conditions, but you do so for a set amount of time; you can also be put on supervised court probation, which is essentially probation with the caveat of reporting to a probation officer every so often (think S.O.R. at a different stage of the process); you can be eligible for various alternative sentencing programs which include drug and alcohol treatment facilities, halfway houses, and city or county work programs where you work off your sentence; or you can pay a fine and be released. Should you be ineligible for any and all of these alternatives, you’ll be looking at life from a new perspective: behind bars.

If you do end up in custody, upon your release you may have to serve time on PRCS, which is similar to S.O.R. and supervised probation, but given a different name because of the point in the process in which it occurs.

So what do all of these things have in common? Money. Aside from the obvious ‘money bail’, each of these avenues in the criminal justice system costs money. For example, pre-sentence reports cost money: without them, you can’t get probation. Drug tests cost money: without them, you can’t get alternative sentencing. Classes cost money: without them, you might be unable to fulfill your terms of release. That doesn’t even mention the costs of renting electronic bracelets for home detention. These various costs all fall under the term “Legal Financial Obligations” or LFOs, a term coined by Wayne A. Logan and Ronald F. Wright in their article Mercenary Criminal Justice. If you consider all the different ways a criminal defendant can be charged monetarily, it’s difficult not to wonder about the disparate impact these LFOs have on impoverished and indigent defendants.

Well, so what, right? You do the crime, you do the time, or in this case, you do the crime, you pay the fine. The problem is that this system of ‘justice’ has created a means of punishing the poor much more harshly than the middle and upper classes.

Over the next few posts, I will be discussing specifically the different fines and fees that are imposed on defendants at different stages of the criminal justice process in California and what some of the implications are from those fines and fees. I will begin by discussing the pre-trial stage and how money is the primary proxy for being released from custody. Money bail is only the tip of the iceberg when it comes to wealth being a factor for who stays in and who gets out. If we are to really look at the ways in which poor people are affected, we must extend our investigation to LFOs.

Immigration Detention: Its Financial and Human Cost

* Version en Español abajo. 

In order to understand how immigration bond works, there are four fundamental things about immigration and detention that we need to understand – that detention and deportation are civil matters; that the ethnic makeup of immigrants in the U.S. has changed; that the structure of immigration enforcement and immigration laws have also changed; and finally, that the cost of immigration detention is not measured only in dollars.

An immigration judge in charge of training other judges claims that 3-year olds can represent themselves in immigration court. (Photo: John Moore/Getty Images)

Despite their potentially devastating consequences, immigration detention and deportation are civil matters. Unlike criminal defendants, immigrants facing deportation do not have the right to appointed counsel. As a consequence, they must navigate a very intricate immigration system on their own, unless they have the means to procure a lawyer. Although the Supreme Court has recognized that deportation is a particularly severe “penalty” and is “intimately related to the criminal process”, immigration consequences remain civil in nature. This characterization has its roots in the now infamous Chinese Exclusion Act of 1882 and cases that sought to challenge it. This Act halted all Chinese immigration and prohibited Chinese from becoming citizens during an era of heightened anti-Asian sentiment.

Outright race-based restrictions on immigration were not uncommon before 1965, when Congress finally eliminated the national-origins quota – a policy that allowed the selection of immigrants based on their national origin. These quotas had given preference to immigrants from Northwestern European countries, and had loosely restricted migration from Southern and Eastern European countries. Chinese immigrants, however, were nearly completely banned until 1943, when still only a handful were allow into the U.S. During this time, immigrants hoping to make their way to the U.S. came through Ellis Island, the best-known immigration inspection station in the U.S. For more than 12 million immigrants, Ellis Island was the gateway to a new beginning, until it finally closed in 1954.

The Soto Family fights for the release of a father and husband. (Photo: Courtesy of Steve Pavey and NIYA)

Currently, there are 11.3 million undocumented immigrants living in the U.S., which makes up roughly 3.5% of the nation’s total population. This is a decrease from 12.2 million in 2007. Over the last few decades there have been changes in the ethnic makeup of these immigrants. In the 1960’s, the top sending countries were Italy and Germany; beginning in the 1970’s the number of Mexican immigrants began a steady increase. However, since 2009, the net migration of Mexican immigrants has fallen below zero. In fact, in 2013 China replaced Mexico as the top sending country. This decline is a result of several factors – the recession, a growing anti-immigrant sentiment and tougher immigration laws. With the growth of the undocumented population stabilizing, this means that a significant number of undocumented immigrants who remain in the U.S. are long-time residents, and have been here for a median time of nearly 13 years.

To other major changes, which have greatly impacted undocumented immigrants living in the U.S., are the restructuring of the agencies in charge of immigration, and certain changes in immigration law. For decades, the Immigration and Naturalization Service (INS) oversaw immigration enforcement and immigration services. In 2003 the INS was abolished and its functions were placed under three agencies – the United States Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE) and Custom and Border Protection (CBP). These agencies were all within the newly created Department of Homeland Security, an umbrella entity established in response to the 9/11 attacks.

A little over a decade before the creation of DHS, in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), This Act greatly expanded mandatory detention for certain immigrants. That same year, the Anti-terrorism and Effective Death Penalty Act (AEDPA) was passed. Together, they dramatically increased the number of immigrants subject to mandatory detention without bond. In a span of two years alone, from 1996 to 1998, this number increased from 8,500 to nearly 16,000.

Naturally, the number of detention facilities has also increased. Congress requires that DHS maintain not less than 34,000 detention beds on a daily basis, spread across a network of about 250 facilities nationwide. No other federal agency is required to maintain a specific number of detained individuals without first determining whether this makes sense from a law-enforcement perspective. This has resulted in an average daily population of over 30,000 since 2007.

The problem with this mandatory bed quota is that DHS owns only 11% of the beds. About 24% are located in facilities owned by state and local governments which are exclusively reserved for immigrants, 62% of all immigration detention beds are operated by for-profit corporations, and the rest are in facilities where people awaiting trial or people serving criminal sentences are also detained. Two private prison companies – the Corrections Corporation of America and the GEO group – dominate the immigration detention industry. Together they operate 72% of the beds, and own and manage 8 of the 10 largest immigration detention centers in the country, including the Adelanto Detention Facility in Southern California, and the Karnes County Correctional Center in Texas, which houses Central American women and children.

These companies have created a very profitable business model. In the late 1990’s, CCA was on the verge of bankruptcy. But in 2000, it received one of the largest contracts ever awarded by the federal government to a private prison company. This contract gave CCA exclusive authority to run the Otay Detention Facility in San Diego, which houses only immigration detainees. Some of the contracts between DHS and these private prison companies include a guaranteed-minimum number of beds and a tiered pricing structure, which gives ICE a discount rate for each person detained in excess of the stipulated minimum. This has lowered the costs to detain more people, sometimes for longer periods of time.

The increase in profits and mandatory number of beds has coincided with an increase in lobbying expenditures by some of these private companies. From 1999 to 2009, the private prison industry spent $20,432,000 in lobbying efforts – CCA spent $18,002,000, and GEO $2,065,000. However, this increase in private prison lobbying is not limited to immigration detention; in 2010 CCA sent a letter to 48 governors offering to buy and operate their public prisons. The letter offered a 20-year contract if certain requirements were met, including a minimum 90% occupancy rate. This type of contract has worried criminal justice advocates, who fear that they will encourage the imposition of harsher sentences in order to meet these non-judicially mandated quotas.

The last key point to understand about immigration detention is the cost. The average cost of detaining an immigrant is approximately $164 per person/ per day. Since 1986, when the last major legalization program occurred, the federal government has spent over $241 billion on immigration enforcement. In 2014 alone, DHS requested $2 billion in funding for immigration detention, approximately 40% of ICE’s $5.3 billion budget that year. That is about $5.5 million per day.

While there is no comprehensive data about how many immigrants are able to reunite with their families because they are released on their own recognizance or because they are able to post bond, we know that an estimated 35,613 immigrants in deportation proceedings have so far been allowed to stay in the U.S. in FY 2016 (October 1, 20015 to September 20, 2016). The reasons vary. It could be because the judge found that the charges against them could not be sustained, they had other relief from removal, such as family who could petition for them, or the government agreed to drop the charges. However, we also know that 70% are subject to mandatory detention, and in FY 2013 alone, the Obama administration deported 438,421 immigrants.

But the cost of mandatory detention and deportation is not limited to dollars. Many of these immigrant detainees have families; they have children and grandchildren. They have established roots in the U.S., sometimes over a period of decades. That’s why some advocates have began pushing for alternatives to detention, including release on recognizance, bond, or monitoring programs. These alternatives are not only much cheaper, but will allow immigrants to remain close to their families while they await a resolution on their individual cases.

In a subsequent post, I will talk about who gets released from immigration detention, the process and considerations to determine immigration bond, and the bonding industry that has sprung up to service it.


Deteniendo a Inmigrantes: El Costo Financiero y Humano

Para entender como la fianza de inmigración funciona, hay cuatro cosas fundamentales sobre inmigración y la detención migratoria que debemos entender – que la detención migratoria y la deportación son asuntos civiles; que la composición étnica de los inmigrantes en Estados Unidos ha cambiado; que la estructura de las agencias migratorias y las leyes migratorias también han cambiado; y finalmente, que el costo de la detención migratoria no se mide solo en dólares.

A pesar de las posibles devastadores consecuencias, la detención migratoria y la deportación son asuntos civiles. A diferencia de los demandados en casos criminales, los inmigrantes que enfrentan un proceso de deportación no tienen derecho a tener un abogado designado por una corte. Ellos solos tienen que navegar un sistema migratorio bástate complicado, a menos que tengan los recursos para contratar un abogado particular. Esto ocurre a pesar de que la Suprema Corte de Justicia ha reconocido que la deportación es un “castigo” particularmente severo y esta “íntimamente relacionado al proceso criminal”, las consecuencias migratorias continúan siendo civiles. Esta caracterización tiene sus raíces en el ahora infame Acto de Exclusión China de 1882 (Chinese Exclusion Act) y las demandas que se entablaron para desafiar este Acto. Esta ley le puso un alto a la inmigración de provenientes de China y prohibió que los inmigrantes Chinos y sus descendientes pudieran hacerse ciudadanos durante una era de gran sentimiento anti-inmigrante contra las personas de descendencia Asiática.

Restricciones abiertamente basadas en la raza de ciertos inmigrantes eran bastante comunes antes de 1965, cuando el Congreso finalmente eliminó las cuotas basadas en nacionalidad – una política que permitía la selección de inmigrantes basado en su origen étnico. Estas cuotas daban preferencia a inmigrantes de países del Noroeste de Europa, y de manera más informal restringían la inmigración de países del Sur y Este de Europa. Los inmigrantes Chinos, por otra parte, fueron completamente excluidos hasta 1943, cuando solo un limitado numero fueron admitidos a Estados Unidos. Durante este tiempo, los inmigrantes que tenían esperanza de llegar a Estados Unidos, entraron por la Isla Ellis, el centro de inspección migratorio más transitado del país. Para mas de 12 millones de inmigrantes, la Isla Ellis representaba la puerta hacia un nuevo comienzo, hasta que finalmente cerró sus puertas en 1954.

Actualmente hay 11.3 millones de inmigrantes indocumentados viviendo en Estados Unidos, lo cual constituye aproximadamente 3.5% de la población total del país. Este numero representa una reducción de los 12.2 millones en el 2007. Durante las últimas cuantas décadas, han habido varios cambios en la composición étnica de estos inmigrantes. En los años 60, la mayoría de los inmigrantes vinieron de Italia y Alemania; en los 70’s el numero de inmigrantes Mexicanos comenzó a incrementar. Sin embargo, desde el 2009, la migración neta de Mexicanos se ha reducido a cero. De hecho, en el 2013 China reemplazó a México como el país con más inmigrantes en Estados Unidos. Esta disminución de inmigrantes oriundos de México es el resultado de varios factores – la recesión económica, una creciente ola de leyes anti-inmigrante y leyes inmigrantes más severas. Con la creciente estabilidad de la población inmigrante, esto significa que los inmigrantes indocumentados que permanecen en el país son residentes de largo plazo, personas que han vivido aquí por un plazo mediano de casi trece años.

Los otros dos cambios que han ocurrido, y que han impactado de gran manera a los inmigrantes indocumentados que viven en Estados Unidos son la restructuración de agencias gubernamentales a cargo de la regulación migratoria y ciertos cambios en las leyes de inmigración. Por décadas, el Servicio de Inmigración y Naturalización (INS por sus siglas en Ingles) supervisó los servicios de inmigración. En el 2003, esta agencia fue eliminada y sus funciones fueron puestas bajo tres agencias – Servicios de Ciudadanía e Inmigración (USCIS), Inmigración y Control de Aduanas (ICE), y Aduanas y Protección Fronteriza (CBP). Estas agencias fueron puestas bajo el recién creado Departamento de Seguridad Interna (DHS), una entidad establecida en respuesta a los ataques del 9/11.

Poco mas de una década antes de la creación de DHS, en 1996, el Congreso pasó la Reforma de la Inmigración Ilegal y de Responsabilidad del Inmigrante (IIRIRA). Este Acto expandió de gran manera la detención mandataria para ciertos inmigrantes. Ese mismo año, el Congreso paso la ley de Antiterrorismo y Pena de Muerte Efectiva (AEDPA). Juntas, estas leyes incrementaron dramáticamente el numero de inmigrantes sujetos a detención mandataria sin derecho a fianza. Durante un periodo de dos años, de 1996 a 1998, este numero incremento de 8,500 a casi 16,000.

Naturalmente, el numero de centros de detención ha incrementado. El Congreso requiere que DHS mantenga un numero de por lo menos 34,000 camas para detenidos cada día, distribuidas en una red de alrededor de 250 centros de detención en todo el país. Ninguna otra agencia federal requiere el mantenimiento de un numero especifico de detenidos sin primero determinar si esto tiene sentido desde un punto legal. Esto a resultado en una población promedio de mas de 30,000 detenidos por día desde el 2007.

El problema con esta cuota mínima es que DHS solo es dueño de 11% de las camas. Un 24% están localizadas en centros de detención propiedad de gobiernos estatales y locales, exclusivamente reservadas para inmigrantes; un 62% de toda las camas en centros de detención son operadas por corporaciones privadas y con fines de lucro. El resto de estas camas están localizadas en centros donde personas que están esperando un juicio o sirviendo sentencias criminales también están detenidas. Dos empresas de prisiones privadas – Corporación de Correcciones de América (CCA) y el Grupo GEO – dominan la industria de centros de detención para inmigrantes. Juntas operan 72% de las camas, y son propietarios y manejan 8 de los 10 centros de detención migratorios más grandes del país, incluyendo el Centro de Detención de Adelanto en el Sur de California, y el Centro Correccional del Condado de Karnes en Texas, el cual detiene a mujeres y niños Centro Americanos.

Estas empresas han creado un negocio muy lucrativo. En los últimos años de la década de los 90s, CCA estaba al borde de la quiebra. Pero en el 2000, recibió uno de los contratos mas grandes contratos que han sido otorgados a una empresa privada. Este contrato le dio a CCA la autoridad exclusiva de manejar el Centro de Detención Otay, el cual detiene solo a inmigrantes. Algunos de los contratos entre DHS y estas prisiones privadas incluyen una garantía mínima de camas, y una estructura de precios que le otorgan un descuento a ICE por cada persona en exceso del mínimo requerido. Esto a reducido el costo para detener a mas personas, y muchas veces detenerlas por periodos más largos.

El incremento en las ganancias para estas empresas y el numero mandatorio de camas coincide con un incremento en los gastos de cabildeo por algunos de estos negocios privados. De 1999 a 2009, la industria de prisiones privadas gastó $20,432,000 en esfuerzos de cabildeo – CCA gastó $18,002,000, y el Grupo GEO gastó $2,065,000. Sin embargo, este incremento en cabildeo no ha sido limitado a detención migratoria. En 2010, CCA envió una carta a 48 gobernadores haciendo una oferta de compra y operación de sus prisiones publicas. Esa carta ofrece un contrato de compra de 20 años si ciertos requisitos son cumplidos e incluyendo una cantidad mínima de detenidos del 90%. Este tipo de contratos preocupa a defensores de la justicia penal, quienes temen que esto promoverá la imposición de sentencias más severas para poder satisfacer estas cuotas.

El último punto que debemos entender sobre la detención de inmigrantes es su alto costo. El costo promedio para detener un inmigrante es aproximadamente $164 por persona por día. Desde 1986, cuando el ultimo programa extensivo de legalización ocurrió, el gobierno federal ha gastado mas de $241 billones en detención migratoria. Solo en el 2014, DHS pidió $2 billones en fondos para la detención de inmigrantes, aproximadamente 40% de los $5.3 billones del presupuesto de ICE ese año. Eso es aproximadamente $5.5 millones por día.

Aunque no hay información sobre el numero de inmigrantes quienes pueden reunirse con sus familias tras ser liberados bajo su propia responsabilidad o porque han podido pagar una fianza, sabemos que un numero estimado de 35,613 inmigrantes en procedimientos de deportación se les ha permitido quedarse en Estados Unidos en los últimos 5 meses. Las razones varían. Esto puede ser porque el juez ha decidido que los cargos en contra del inmigrante no pueden ser sostenidos, ellos tienen otra forma de alivio legal, o el gobierno ha decidido retirar los cargos. Sin embargo, sabemos que 70% de inmigrantes son sometidos ha detención mandatoria, y solamente en el año fiscal 2013, la administración del Presidente Obama deportó 438,421 inmigrantes.

Pero el costo de detención mandatoria de inmigrantes y la deportación no están limitadas a cifras en dólares. Muchos de estos detenidos tienen familias, e hijos y nietos. Ellos han establecido raíces en este país, muchas veces sobre un periodo de décadas. Es por eso que algunos defensores de inmigrantes han comenzado a abogar por alternativas a la detención, incluyendo la libertad bajo palabra, fianza, y otros programas de monitoreo. Estas alternativas no solo son mucho más económicas, también permitirán que los inmigrantes permanezcan cerca de sus familias mientras esperan una resolución de sus casos.

En mi siguiente articulo hablaré sobre quienes son puestos en libertad, el proceso y consideraciones que se toman en cuenta para determinar el monto de una fianza, y los negocios que han surgido para proveer este servicio.





Bail: How does it work?

Before Criminal Law and Policy Blog delves into the nuance of bail and the topics we have introduced, there are some basics to cover.  First, what is bail?  The short answer is that bail is any form of release, from own recognizance release to money bail.  Bond or commercial surety bail is that release guaranteed by a bail bond company.  Be sure to read Bail: What are we even talking about? for a more thorough explanation of this term of art and how it differs from the term bond.  This post will explain the process of administering bail.  Once an individual is arrested, when and how can he or she be released on bail?

What follows is an explanation of the different stages at which bail is “assessed” after a person is arrested.  I use quotations because the entity or individual doing the “assessing” doesn’t necessarily use discretion, and may merely apply a formula.  Essentially, a person, from here on out we will refer to him or her as the defendant, can be released prior to trial at these different points in the post-arrest process.  A better understanding of this process will help us gain insight into the sources of pretrial population pressure. Continue reading “Bail: How does it work?”

Jail, America’s Psych Ward

In America, people with mental illness have a remarkably disproportionate involvement in the criminal justice system. Men in jail are four times more likely to suffer from serious mental illness than their non-incarcerated counterparts while women are almost six times more likely. There are ten times more people with a mental illness behind bars than in state funded psychiatric beds. Put another way, there is not a single county in the United States in which the psychiatric facility serving the community has as many individuals with severe psychiatric disorders as does the county jail. A serious mental illness is defined as persons over the age of 18, who currently or at any time during the past year have had a diagnosable mental, behavioral, or emotional disorder of sufficient duration, resulting in a functional impairment that substantially interferes with or limits one or more major life activities.

The disparity between mentally ill individuals in society versus behind bars stems in part from the get-tough-on-crime policies that have permeated our criminal justice system for decades. These policies forced jails to morph into ill-equipped, large-scale, mental health facilities. If you follow the news, it is more apparent than ever that jail is not an appropriate place for the mentally ill. At the Los Angeles County Jail, a mentally ill inmate was beaten to death by his cellmates after they became irritated with him because he was “mumbling to himself.” In August 2015, a 31 year-old mentally ill detainee serving a five-day sentence for petty theft at Santa Clara County Jail was beaten to death by three correction deputies while he was waiting for a bed to free up in a mental health facility. He was allegedly beaten for pocketing his medication. These incidents illustrate that jail inmates with mental health issues are not getting the care they need and the results are devastating.

But are jails even required to provide mental health care to inmates? Absolutely. Jails are constitutionally required to provide adequate medical care to pretrial detainees under the Due Process Clause. In City of Revere v. Massachusetts General Hospital, the Supreme Court explicitly stated that pretrial detainees are entitled to be free of punishment, thus requiring the government to provide medical care to inmates and receive protections “at least as great as the Eight Amendment protections available to a convicted prisoner.” Under this obligation, the government must provide medical care necessary to maintain the health and safety of people they place behind bars. In Bowring v. Godwin, the Fourth Circuit concluded that the constitutional right to medical care extends to mental illness treatment, stating there is “no underlying distinction between the right to medical care for physical ills and its psychological or psychiatrist counterpart.” Because inmates are the only group of Americans with a constitutional right to health care it has been reported by some county officials that mentally ill individuals often commit crimes simply to receive treatment.

So what kind of mental health care are pretrial detainees (remember, these are individuals who have yet to be found guilty of any crime) actually receiving while incarcerated? Despite the large number of mentally ill people involved in the criminal justice system, police officers and jail staff receive very little training about interacting and managing inmates with mental disabilities. This lack of training can have deadly effects in the field and in jail. Mentally ill inmates are often locked in solitary confinement because jail staff doesn’t know how to manage them. Solitary confinement is thought to be the most severe and cruel punishment for anyone suffering from mental illness and is known to lead to suicide. Jails are often understaffed and thus many mentally ill inmates go untreated. Until recently, the Santa Clara County Main Jail had a grand total of three psychiatrists for the approximately 1,500 mentally ill inmates behind bars. This lack of staff has irreversible effects for Santa Clara jail inmates. For example, inmates experiencing adverse side effects from prescribed medication often go unnoticed. Inmates are often forced to stop taking their medication in preparation for a doctor’s appointment resulting in extreme drug withdrawal that leads to psychosis. This inadequate treatment results in a vastly higher number of mentally ill individuals re-entering the criminal justice system. In sum, “[t]he lack of treatment for seriously ill inmates is inhumane and should not be allowed in a civilized society.” – Dr. E. Fuller Torrey, founder of the Treatment Advocacy Center.

There are a number of additional factors contributing to the insufficient mental health care that inmates receive in jail. First, inmates with serious mental illnesses are four times more likely to be incarcerated for less serious charges such as disorderly conduct and threats than non-ill inmates. Second, jail exacerbates psychiatric symptoms because inmates are often placed in solitary confinement, and can be subjected to violence and sexual abuse from fellow inmates or jail staff. Third, people suffering from mental health disorders that don’t cause a radical change in behavior, like depression or PTSD, may go untreated because unless recognized by staff, an inmate’s mental health is self-reported. Fourth, pretrial detainees who were in therapy or comprehensive treatment before an arrest do not continue to receive these services while incarcerated, making mental health issues significantly worse. And remember, all these devastating affects of incarceration on mentally ill pretrial detainees occur before the individual is even found guilty.

Not only can the results of jails becoming de facto mental hospitals be detrimental to mentally ill inmates, but we actually spend more money by investing in incarceration instead of preventative care. Frequent flyers in the criminal justice system cost taxpayers twice as much as assertive community treatment programs because inmates tend to continually cycle in and out of jails and hospitals. According to a special report published in 2016 by USA Today, a community can pay for an entire year of intensive treatment for the cost of one incarceration (94 days) or one hospital stay (19 days) for a person with mental illness. The numbers prove that investing upfront in preventative mental healthcare actually reduces costs in the aggregate. A jail diversion program for the mentally ill in Massachusetts saved $1.3 million in emergency health services and jail costs. Georgia found that providing comprehensive mental health services to mentally ill people involved in the criminal justice system cut the number of days these people spent in the hospital by 89%, and the number of days spent in jail by 78%. In all, the program saved Georgians $1 million in its first year.

Mentally ill people are much more likely to be arrested and charged for minor offenses. These individuals are then placed in jail, an environment that exacerbates mental health issues, even before being convicted. They receive less than adequate mental health care for two times the cost of community treatment programs and when eventually released are significantly more likely to recidivate then their non-ill counterparts. My next post will be about the specific challenges mentally ill inmates are faced with right here in Santa Clara County, followed by a discussion of possible solutions to this great economic and social catastrophe.