When does the Judge come into the bail picture?

My earlier post discussed the training requirements for new judges in California. There is an extensive amount of material and training available to judges, however the issue seems to be the timing component. Judges can hear cases for as much as six months before having any formal training in their new role as a judge. Now, by looking at the role of judges in determining bail we can better understand why this timing component can be problematic for new judges.

What is the judge’s role in bail?

When a defendant is arrested and booked on charges they have the option to be released on their own-recognizance (OR) or pay a bail amount to be released from custody. The bail amount for defendants is set by a Judge or Commissioner. “If bail is not posted, the defendant will remain in-custody until s/he is taken to court for their arraignment within 72 business hours (excluding weekends and holidays).”(Pre-Trial Service ). The defendant is then taken to court for arraignment. At this point judges are given a report from pre-trial services regarding their recommendations regarding releasing the defendant or not. Pre-trial services may request that a defendant be released on O.R., Supervised O.R., or stay in custody. The final decision on whether to release a defendant on O.R., supervised O.R., or set a bail amount rests solely at the discretion of the Judge hearing the defendant’s case. “Penal Code Section 1270 (page 4) states that defendants charged with misdemeanors are entitled to an OR release unless the judge finds that to do so will endanger the public or not ensure the defendant’s appearance in court.” Further along in the post I will discuss what the pre-trial service report entails.

Although judges might not be formally or extensively trained regarding bail before hearing cases, there is a benchguide to provide judges with information and guidance for handling bail and own-recognizance (OR) motions. “Judges are required by Penal Code §1275(a); Cal Const art I, §§ 12, 28 (b)(3), (f) (3)) to review the following factors when setting a bail amount: protection of the public, safety of the victim, safety of the victim’s family, seriousness of the offense(s) charged, Defendant’s criminal record, and probability of defendant’s returning to court.”(benchguide 55-4).

I have previously compared the training requirements of judges in California to that of judges in New Jersey. Although they both offer extensive and similar training, New Jersey requires more immediate training than in California. The factors judges are required to consider in New Jersey are: “(1) the seriousness of the crime charged against the defendant, the apparent likelihood of conviction, and the extent of the punishment prescribed by the Legislature, (2) defendant’s criminal record, if any and previous record on bail, if any;(3) defendant’s reputation, and mental condition; (4) the length of defendant’s residence in the community; (5) defendant’s family ties and relationships; (6) defendant’s employment status, record of employment, and financial condition;(7) the identity of responsible members of the community who would vouch for defendant’s reliability; (8) any other factors indicating defendant’s mode of life, or ties to the community or bearing on the risk of failure to appear, and, particularly, the general policy against unnecessary sureties and detention.”

New Jersey seems to allow judges more areas to consider by factoring in the defendant’s family ties, reputation, length of residence in the community, etc. For newly appointed judges having a wide range of factors and possibilities to look at can be beneficial to help judges determine bail. In California, however, judges are only required to take select factors into consideration when setting the appropriate bail can be more difficult.

2015 Bail Schedule:

Section 1269b(d) of the California Penal Code requires the Criminal Bail Schedule to be adopted by a majority of the Judges. “The Bail Schedule gives an example of what the bail should be for most statutory offenses. Although a Judicial officer has the final decision regarding bail, and may choose to follow the bail schedule or exercise their discretion to deviate. To give you a look into examples contained in the bail schedule and how it works, when a defendant is booked on more than one charge arising out of a single act the highest bail amount is set. For example, if charge one carries a $50,000 bail amount, charge 2 carries a $10,000 bail amount, and charge 3 carries a $10,000 bail amount, the bail in that situation would be $50,000. However, if a defendant is booked on more than one charge arising from different acts that permit multiple punishments the bail amount is different. For example, if charge 1 carries a $10,000 bail amount, charge 2 carries a $25,000 bail amount, and charge 3 carries a $25,000 bail amount the bail in that case would be $60,000 because they are separate acts to be punished separately. (pg. 5 Bail Schedule).

A common violation that defendant’s typically post bail on is Section 23152 of the vehicle code (Driving under the influence of a controlled substance and/or alcohol). The bail schedule gives judges guidance on how to set bail for this crime. If the individual has no previous violations bail is suggested at $10,000, one separate violation $20,000, two separate violations $40,000, and 3 separate violations $100,000. (pg. ix bail schedule).

Here is a visual to give you a sense of what the bail schedule chart for certain offenses looks like in Santa Clara County. The first column gives the penal code section, second column gives the offense, the third column is the possible jail term in months and years (Penal Code 32- 16 months, 2 years, or 3 years), and lastly the recommended bail.

Screen Shot 2016-03-22 at 12.29.54 PM(pg. 6 Bail Schedule)

Here is a look at what the bail schedule looks like in New Jersey:

Screen Shot 2016-03-22 at 12.27.06 PM

Having a bail schedule can be very beneficial for judges and give them guidance when making bail determinations. However, for new judges with little to no training on this area and little practical experience in this new position, do they just follow the bail schedule? What other information is given to judges in order to help them make a bail determination besides the bail schedule? These are important questions that should be answered when deciding how to train judges.

Pre-Trail Service Report:

“The basic function of the Office of Pretrial Services is to make recommendations to judges in the Superior Court for the County of Santa Clara regarding whether criminal defendants should be released pending trial on a written promise to make their court appearances.” There is a jail division in pre-trial services that gives the initial recommendation to judges and magistrates on whether to recommend the defendant be released on their own recognizance or remain in custody. In fact Santa Clara County is the only county in California that allows an individual to be released from jail without seeing a judge in person. (Pre-Trial Service Audit Report). A common pre-trial service report contains this information; (1) Whether the primary charge is a serious, violent, or gang-related felony, (2) whether the defendant has any other pending criminal charges, (3) the defendant’s criminal history, including two or more case convictions, (4) whether the defendant has a pattern of failing to appear in court based on three or more such failures in the prior three years, prior convictions for failure to appear or escape, or a discernible pattern of failing to appear, (5) whether there is a history of violence, based on two or more convictions for crimes defined as violent by the California Penal Code, including physical violence or weapons use. (6) Length of current residence, including whether they have had three or more addresses in the past year, and/or lacking family in the area, (7) Presence of absence of stable employment or current school attendance, or status as a primary caregiver, (8) history of drug abuse, based on criminal history, (9) presence of a victim in the case, and whether the victim is fearful of the defendant’s release. (Pre-Trial Service Audit Report pg. 36). Based off the information contained in this list, the decision-making tool generats a score of zero to nine points. Scores of less then two are low risk, three to four reflect average risk, five to six reflect above average risk, and scores of seven or higher should be denied release. (Pre-Trial Service Audit Report pg. 37). Based off the 2012 Audit report, judges that were interviewed felt that this information accurately captured factors that are related to the defendant’s success while on release. This list of factors developed in January 2011 when the Office of Pretrial Services began using a new decision-making tool in order to evaluate risk factors in defendants to better assist judges. Pretrial Services decided to use these factors based on their experience with defendants these areas accurately captured the factors that are related to the defendant’s success upon release.

What information do judges have before setting bail?

I have explained the bail schedule and the pre-trial service report and how those help judges make bail determinations. Typically, when a judge is setting bail at arraignment the judge has the court file; which contains the charges, police reports, etc. The judge also has the bail schedule and pre-trial service report. [1] So the question is, what weight do judges put on the bail schedule or pre-trial service report? Are judges always following the pre-trial service recommendations? The next post will begin to answer these questions and how what I have discussed so far about judges plays into real practice.

[1] Based off interview with Santa Clara County Superior Court Judge (anonymous).