Don’t Forget to Tip the Court

A criminal defendant goes through the justice system in stages, starting with the pretrial stage. This stage encompasses the moment a person has had a brush with the law, either through a citation or by being arrested, and extends to the point when a trial has begun. There are numerous opportunities during pretrial that a defendant can take advantage to be released from custody if she has the monetary means to do so. The most obvious is money bail, which has been criticized as a broken system due to many factors, including the large sum of money that the bail industry reportedly owes the state of California. However, my discussion will focus on other avenues of pretrial release and how money and wealth are still intertwined in those alternatives, starting with cite and release practices.

Under the California Penal Code section 853.6 police are required to grant pretrial release of persons arrested for misdemeanor crimes and, issue a citation, absent certain conditions (sections 1 and 2). The rationale behind this sort of release is twofold. First, misdemeanor arrestees pose a minimal threat to public safety, which is the most commonly articulated reason for detaining a person pretrial. Second, issuing a citation in misdemeanor cases is sufficient to ensure that the person will be present for future court proceedings. Further, pretrial incarceration has posed serious questions surrounding deprivation of due process, since some studies (pdf. page 62) have shown that defendants who are kept in custody during pretrial tend to have far worse outcomes than their free counterparts. So, if you are lucky enough to be cited and released, how does the size of your bank account affect the next phase of the pretrial stage?

If you have been issued a citation and released, whether at the place of the incident, or once you have been arrested and booked, a monetary bail amount can be set pursuant to Penal Code Section 1275 even before you have appeared in court. get out of jailThe most common form of a person being cited and released in the field, as opposed to at a police station or jail booking, is a traffic citation, however, these types of cite and releases also occur frequently in other instances such as littering or simple possession crimes. These types of citations, especially relating to traffic stops, generally have a ‘bail’ amount set (where bail in these cases means a fine to be paid to avoid to avoid further criminal implications), which has proven to be an incredible hurdle for people who are unable to spare the extra few hundred dollars.

According to California’s Legislative Analyst Office, not only have some of these base fines increased more than fifty percent in the last ten years, but also if you are unable to pay the initial amount, or are late in paying the fine, the penalty will only result in an increase of your fine and a suspension of your driver’s license (pdf. page 15) and can even lead to arrest warrants. In short, if a person is unable to pay a fine, she will then be unable to legally drive to work, where she could earn money to pay the fine. This will only result in more fines. Finally, failure to pay the ever-growing fines, can eventually lead to incarceration.

If instead of being cited and released in the field, you are arrested and booked, then given a citation, you too, will have to pay up. In 2005, the Department of Justice reported that jails were charging as much as $168 (page 30) nationwide to book a defendant. However, that report could be inaccurate due to sampling, because according to a report put out by Santa Clara County, the jail in Santa Clara County charged $259.50 (pdf. page 12) to book defendants in as early as 2006. These booking fees are generally collected from funds that a person has with them at the time of booking and at least one state (pdf. page 15) has made it an infraction to not pay the booking fee. It is worth noting that Santa Clara approximated that only 2.5-3.2% of fees from eligible bookings are collected. Although the practice of cite and release affords a person their physical freedom, it punishes them based on their inability to open up their wallets and pay.

Another avenue of release from custody during the pretrial stage is being released on your own recognizance (OR). This is similar to cite and release in that you do not pay or post money in order to be released and OR can happen almost immediately after a person has been booked and evaluated by pretrial services (PTS). OR also occurs at a person’s arraignment, the time in which she would be informed of the charges being brought against her. Although there are typically no additional fees directly associated with being OR’ed, one must promise to attend all required court hearings and not commit any new criminal offenses to be OR’ed. The decision (pretrial justice forms of release process chart) whether to release someone on OR is typically made by interviewing the arrestee, as well as predicting their likelihood of failing to appear through locally validated assessment tools. Most misdemeanor arrestees are released on OR pursuant to California Penal Code section 1270, which in relevant part, reads

A defendant who is in custody and is arraigned on a complaint alleging an offense which is a misdemeanor, and a defendant who appears before a court or magistrate upon an out-of-county warrant arising out of a case involving only misdemeanors, shall be entitled to an own recognizance release unless the court makes a finding on the record, in accordance with Section 1275, that an own recognizance release will compromise public safety or will not reasonably assure the appearance of the defendant as required.

Should the court find that OR would compromise public safety or result in the defendant’s failure to appear, it may still grant OR under supervision (SOR) which is essentially OR with added conditions.

SOR is where fines and fees come into play, yet again. If a person is granted SOR, like OR, they are required to attend all court hearings and not commit any new criminal offenses, with various added conditions. SOR may impose any conditions in which the court sees fit and usually includes provisions, such as these in Riverside County, as informing the SOR unit of your permanent residence and informing them if you move, reporting on a scheduled basis to the SOR unit/supervisor, submitting to mandatory drug and/or alcohol tests, submitting to electronic monitoring, refraining from possessing weapons, enrolling/attending rehabilitation facilities, treatments, and classes, and complying with curfews and restraining orders. Sometimes a court may require that a defendant must both post bail and comply with SOR conditions. Failure to comply with SOR conditions may result in imprisonment, fines, and additional criminal charges.

Although SOR has been criticized as violating people’s constitutional rights to due process because it is a form of punishment before a conviction, proponents argue that the majority of people would prefer to be sleeping in their own beds while complying with these conditions rather than waiting it out in a jail cell. Well, some people may not have the opportunity to do just that due to financial instability or lack of financial means. Even though SOR costs the taxpayer only a fraction of what it costs to detain someone pretrial, the minimal costs that are associated with SOR are being passed onto the defendants rather than being sustained by the program.

Pretrial Services Daily Monthly Annually
Pretrial Detention  $ 73.03  $ 2,221.22   $26,654.69
Supervision by Pretrial Services Officers   $  7.24    $  220.29   $  2,643.50

The SOR conditions like electronic monitoring, drug and alcohol testing, and mandated therapy/rehabilitation classes and programs cost money (pdf. page 7), and are usually charged to the defendant. For instance, if a judge orders drug testing as part of the conditions of SOR in Santa Clara County, the defendant must pay a $15 fee to receive each test and according to the National Institute of Corrections (pdf. page 9), defendants were being charged as much as $60 in 2005 for this court imposed condition. The same report stated that defendants were being charged as much as $22 per day to be placed on court required electronic monitoring (pdf. page 11).

Commonly in driving under the influence cases, judges require that a defendant wear a Secured Continuous Remote Alcohol Monitor (SCRAM) device. SCRAM devices, typically provided through third parties, are bracelets that are attached to a defendant’s ankle that are tamper-resistant, water-resistant, and wear-resistant that samples the wearer’s perspiration for traces of alcohol and uploads the results to a central computer database. Although these devices have many benefits such as avoiding the process of a defendant having to physically drive to an office for a test and having continuous information as well as instantaneous results, they do not come without a cost.

Various numbers have been reported regarding these costs, some as high as $450 for a onetime installation fee coupled with a $39 daily fee. There is a lack of information regarding the cost of the devices, however, NPR reported that it can total more than $400 a month for installation and daily fees. Due to a lack of published information regarding these fees, I spoke to Leslie Summers, one of the directors at Leaders in Community Alternatives (LCA). LCA is one of the companies that Santa Clara County outsources for SCRAM devices, breathalyzers and electronic monitoring. When asked about the rationale for defendants paying for these court ordered conditions Ms. Summers responded

We believe that people who are financially vested have higher success rates [in] saving taxpayer’s dollars. Clients are allowed to work, support their families and pay their fines and access the treatment they need. Alcohol dependent people have self-reported spending over $14 per day on alcohol [later stating that paying for the program can end up saving them money].

Ms. Summers also reported that costs relating to the SCRAM are assessed, at least in some counties, on a sliding scale based on household income and length of use. These costs in the counties that utilize sliding scales with the LCA, range from $5-$39 per day with an initial installation fee starting at $150, all of which must be paid up front. Ms. Summers reported that all clients are expected to pay something, if they can, and that in San Francisco and Marin Counties some people may only pay $2/day with the county supplementing the remaining costs. She also reported that at least one county, Riverside, has an indigent fund for SCRAM that can help to alleviate the cost for clients that have no ability to pay.

Sometimes a defendant may be required to be subject to electronic monitoring. This monitoring program usually comes with conditions such as curfews, that a person stay within a certain distance of their home or workplace or stay a certain distance away from schools or playgrounds. The monitoring devices used are similar to SCRAM bracelets in that they are attached to a person’s ankle and record data to a central computer database. These devices differ from SCRAM bracelets because they collect data regarding the person’s location.

Again, there is a lack of published information regarding the costs. However, Ms. Summers reported the same costs for GPS electronic monitoring and SCRAM. The caveat with this device is that it runs off a landline phone number; so if a person is required to be electronically monitored, she must have or install a landline and, as you would expect, pay for the service to have the line up and running.

It is clear that pretrial release has many benefits, including better outcomes at the resolution of a case, the ability to be free from custody and work, and is a cost saving avenue for the government. However, is it really beneficial if it continues to free only the wealthy and incarcerate the poor? Although there are instances when the fines and fees are assessed based on a sliding scale, it still seems as if the system favors the wealthy when it comes to pretrial release from custody.

In my next post, I will be discussing whether or not the same is true when looking at the fines and fees that are associated with being in custody.

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