Paying for nothing: How misdemeanor defendants end up paying bail bond companies when they shouldn’t have to.

In 2014, the City of San Jose made 10,823 misdemeanor arrests.  Considering the population of pretrial misdemeanants in Santa Clara County is in the 300’s at any given time, there are thousands of these defendants out of custody on some form of bail.  In this post, I will begin by giving background on misdemeanor crimes in general.  I will then discuss how the bail system operates for misdemeanor defendants and where it fails them.  Finally, I conclude this post with policy recommendations that could prevent some of the harm that arises from the system as it stands now.

Misdemeanors are crimes punishable by one year or less in custody to be served at county jail.  Misdemeanors are distinguishable from felonies because the associated sentence and fines are statutorily limited, they have a less serious effect when used as a prior conviction on a person’s record, and they may not limit an individual’s job and housing prospects the way a felony conviction can.  We have distinguished misdemeanors because, as a society we have decided that these crimes warrant less severe punishment.

This isn’t to say that an individual accused of a misdemeanor isn’t facing serious consequences.  While any conviction will count as a prior, some misdemeanors are “priorable.”  That means if the defendant is convicted of that crime and subsequently accused of the same crime, the punishment is automatically increased according to statute.  For example, if a person is caught driving on a suspended license for the second time within five years, California statute mandates that the punishment increase from five days in county jail to ten days.  Additionally, a convicted defendant may be required to register with local law enforcement if the offense was drug, gang, or sex-related.  Not only do misdemeanor convictions have real legal consequences, they also have consequences for an individual’s personal and professional life.

The law also treats misdemeanors differently from felonies when it comes to bail.  While own recognizance release is available in all cases except where the defendant is accused of a capital offense, there is the presumption of own recognizance release for misdemeanor cases.  This means that the defendant need only to promise to appear at their next court appearance in order to be released prior to trial.  In order to deviate from this presumption, a judge must state on the record the reason for placing the defendant on supervised O.R. or imposing money bail.  Although this presumption exists in the law, in practice, defendants who could be entitled to own recognizance release sometimes end up posting money bail.

When a defendant pays a commercial bail bonds company 10% of the bail amount to post bond, they never get that money back.  Furthermore, the defendant must sign a contract to work with a bail bondsman.  Even if the defendant has the money to post the full amount of bail, they will have to pay fines and fees before they ever get their money back.  On the other hand, jail citation and release and own recognizance release come at no cost to the defendant.

There are situations that result in a defendant who could be released on their own recognizance paying bail or posting bond.  These scenarios arise when a defendant is not cited and released by the arresting officer.   As I noted in my previous post, cite and release is mandated for misdemeanors and violations of city and county ordinances unless the defendant is accused of certain crimes or specific conditions are present.  An arresting officer has complete discretion to either allow the defendant to go to booking on their own accord at some point before their first hearing or to take the defendant to county jail for booking.

Although this distinction in procedure seems inconsequential, it can be the difference between a defendant paying money or being released at no cost.  If an officer decides to take the defendant in for booking at Main Jail in Santa Clara, the booking process takes three to five hours, after which the defendant could be cited and released from the county jail.  During those three to five hours, a defendant may not know he or she is entitled to citation and release and may post money bail through friends or family or post bond through the use of a commercial bail company.

The latter is more likely.  In Santa Clara County over $32,000,000 in commercial bonds were posted in December 2015 alone.  Not only is commercial bail a more viable alternative for low-income households because families would only have to produce 10% of the bail amount as opposed to the whole amount, commercial bail companies advertise.  These companies are advertising in the jail, in the very room where defendants are waiting to complete the booking process.  While there are advertisements on the wall and a phone that defendants can use to call bail bondsmen, there is nothing to inform the defendants whether they may be entitled to citation and release or own recognizance release.

Advertising is not the only method that bail bonds agencies in Santa Clara have used to drum up business.  In August 2015, the Santa Clara County District Attorneys Office filed criminal complaints against over 30 Santa Clara County bail bondsmen for using inmates in the jail to solicit business and get information about defendants brought into the jail.  Because of the lack of information provided to defendants about commercial bail alternatives and these more coercive and illegal tactics, defendants may end up paying to be bailed out when they don’t need to be.

Even if the defendant enters an arrangement with a commercial bail company to pay their bond as soon as they arrive for booking, they are not immediately released.  They must wait for the booking process to be completed.  This process takes the same amount of time whether you are ultimately cited and released, released on O.R., pay bail, or deposit bond. After booking, it may take a few additional hours before citation and release would occur.  Release on O.R. could take the longest of those three options because this form of release can only occur after the on-call judge has had the opportunity to approve the defendant’s eligibility.  Some people may decide that paying money bail or depositing bond is worth getting out of jail as soon as possible, even if it would only be hours before being cited a release.  Ultimately, defendants should be able to make an informed decision about what is best for them.

Not only do defendants pay commercial bail bond companies when they can be released at no charge, they can end up paying these companies when a criminal complaint against them is never filed or charges are ultimately dismissed.  Just because a person is arrested for a crime, it does not mean that a complaint will be filed.  The District Attorney must review the police report and make the decision to file a complaint.  If a defendant posts bail immediately, the Distract Attorney would likely not have filed charges in that case.  Even if a complaint is filed, the District Attorney may choose to dismiss the charges.  The earliest opportunity to dismiss the charges would be at the arraignment, potentially after the defendant has posted bail prior.  There are cases where the District Attorney will decline to pursue prosecution and if the defendant had already paid a bail bondsman, they can kiss their 10% goodbye.

At this point you are probably wondering, how much money are we talking?  Certainly the amount of bail would play into a defendant’s decision to stay in custody for a few extra hours.  The amount of money bail at this stage is determined wholly by the bail schedule.  Judges in each county set the bail schedule yearly.  The amounts listed represent the amount of money required to make bail depending on the offense, whether that comes in the form of cash or a secured bond from a bail bond company, in which case the defendant would pay a nonrefundable percentage to the bail bond company.

In Santa Clara County, the amount of bail for misdemeanors ranges from $100.00 to $25,000.00, the amount increasing with the seriousness of the crime.  While it makes sense that more serious crimes should require more bail, the absurdity of scheduled bail amounts is more apparent when comparing different counties.  Each county makes its own bail schedule and amounts can vary greatly.  For example, in Santa Clara County the amount of bail scheduled for a violation of California Penal Code section 603, vandalism, is $1,000.00.  In Orange County, the scheduled bail amount for the same crime is $500.00, while in Kings County the scheduled bail amount from 2012 was $5,000.00.  Depending on where you live, $500.00 could be the entire amount of bail or the 10% you pay the bail bondsman.  That difference matters, especially when the defendant never needed to pay that 10% to begin with.

So far, this post has talked a lot about the ways defendants can be released on some sort of bail prior to trial.  What about those defendants who remain in custody prior to trial?  In my first post to the Criminal Law and Policy blog, I opened with the number of pre-trial defendants in custody accused of misdemeanor crimes.  At that time, there were 394 of these individuals in custody and they had served an average of 33 days.  As of April 3, 2016, the number of misdemeanor defendants in custody is slightly less at 367, but the average number of days in custody has increased by almost 33% to 43 days [Daily Population Sheet for April 3, 2016].  In 2014, a defendant accused of a misdemeanor in Santa Clara County served an average of 28 days in custody before trial (see page 14).  Although these numbers alone are not sufficient to establish a trend of increasing pretrial time served for these defendants, they suggest that this is one area where county jail population pressures need to be addressed.  44 days seems like an exceptionally long time for someone to be in custody prior to even being tried on a misdemeanor.  The Office of Pretrial Services in Santa Clara estimates that over 90% of those in custody pre-trial are there because they cannot afford bail (see page 27).  Most likely, these defendants have also been denied other forms of pre-trail release, either O.R. or supervised O.R.  A judge will deny release if he or she feels the defendant poses a threat to public safety or will fail to appear in court.

While these are important considerations, it is crucial to note that the bail schedule does not contemplate these prior acts and neither does citation and release law.  If the argument in favor of holding a defendant in custody prior to a determination of O.R. release by a judge is public safety, we must recognize that the bail schedule contemplates neither the danger to public safety nor the criminal history of the defendant.  A defendant who is both dangerous and unlikely to appear in court but has the financial means to pay bail or secure bond can secure release prior to trial.  Those left in custody are those who simply cannot pay.

How can we change this dysfunctional system?  Although the problems seem overwhelming, we are starting where we can.  My colleague Ruby Renteria and I have created a know-your-rights-style worksheet to inform misdemeanor defendants about their eligibility for jail citation and release or release on their own recognizance.  We are hoping to make this worksheet available to defendants while they are waiting to complete the booking process in Main Jail and prevent these individuals from unnecessarily paying a bail bonds agency when they are eligible for release at no cost.  We will post this form in the near future, hopefully with an update on how it is being utilized in Santa Clara County.

Another policy suggestion that could reduce the harm for those defendants who post bail using a commercial bail bond company despite being eligible for another form of pretrial release, is to advocate for judges to exonerate money bail in those cases and change the form of bail to own recognizance release.  At that point in the process, the defendant would have already paid the commercial bail company 10%, money he or she would not be getting back.  What this practice could prevent is the defendant being obligated, by the terms of his or her contract with the bail bond company, to pay the bail bond company additional money if they fail to appear.

At this point, you may be asking why should we prevent defendants from being subjected to additional punishments for failing to appear in court?  First, it is important to recognize that people can fail to appear in court for a variety of reasons, including child care issues, not wanting to miss work, or medical emergencies.  Second, the bail bond companies who have guaranteed the defendants appearance by posting bond are not paying when a defendant fails to appear.  Why should the bail bond companies make a profit when they have failed to ensure their clients appearance?  Also, it may not be the defendant who pays when bail companies collect on the terms of the contract: family members often put up property as collateral.

Lastly, what can we do about those individuals that are in custody for a long time pending trial?  This is a complex issue and requires looking at the different strategies implemented in other states.  Would a deposit-based system or the creation of a community bail fund make a difference in California?  Before I approach those topics, I will be writing about something more foundational – the implications of a person posting their own money bail and how it is not a reasonable option for poor individuals, even if they can come up with the money.


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