You’re a CA County Concerned About Potential Ill-Effects of Commercial Bail, What Can You Do?

State law often allows counties to regulate industries at a local level. For example, the business and professions code 25612.5, which regulates alcohol in California, states in article 1 that these regulations are “state standards that do not preclude the adoption and implementation of more stringent local regulations that are otherwise authorized by law.” This allows a county to be “dry” and prohibit alcohol even though alcohol is a legal drug in the United States. Even if a county cannot regulate an industry directly, it can indirectly influence that industry through a variety of legal strategies, such as regulating land use. This post identifies California-specific local solutions to bail concerns that may improve the way bail bondsmen interact with criminal defendants.

A county may be concerned with bail agents providing bond for defendants who are eligible for release on their own recognizance (“OR”) with no financial obligations. [See here for a thorough explanation of this problem.]  This would extract unnecessary payment from citizens who otherwise would not have to pay money for their release (excluding court costs and other charges). To clarify, a defendant’s bail in California is set automatically based on their criminal charges. This is determined by a bail schedule that varies by county. A magistrate will then assess the defendant’s bail amount and can adjust it, or even allow the defendant out on OR release without financial obligations. This means it is possible that defendants who are eligible for OR release can pay the bail schedule amount for their alleged crime before they are assessed (or even know they will be assessed) for OR release. Without going on the record, insiders report that it is known that bondsmen will try and get customers before assessment, without informing them of the possibility of an OR release. Further, bondsmen have even been alleged to resort to illegal means in order to cash in on this particular demographic.

Counties may be dissatisfied with the information available on local bail agents. In order for a county to be able to contrast advantages and disadvantages of money bail release with other forms of pretrial release, the county might want more information from bail agents regarding their practices, costs, revenues, and so on. This would allow a county to identify meaningful reform, or evaluate if reform is valuable or even necessary. For instance, while bail agents are required by section 2094 of the California Code of Regulations to publicly file their fee schedule, that “public document” is only available through a public records act request of the California Department of Insurance. A criminal defendant cannot shop around effectively when they must rely on word of mouth for rates from business competitors and, further, a criminal defendant is often detained in a facility with limited access to communication in the first place.

  1. Direct Regulation of Bail Agents is Possible Through Local Ordinance.

Because bail agents are insurance agents, their industry is regulated by both the California Insurance Code (§§1800-1823) and by Title Ten of the California Code of Regulations. Section 1800.6 of the CIC provides that counties’ and cities’ regulatory powers are not limited so long as regulations are “not in conflict with” the other provisions in that chapter. Therefore a county could pass local ordinances to address bail concerns directly. For example, this could include requiring additional obligations of licensed bail agents, or that bail agents report specific data.

Bail agents are currently required to file certain information with the Insurance Commissioner. (See sections 2094-2104). As discussed above, section 2094 requires bail agents to file a schedule of charges to be made for bail to a defendant, and deviation from that schedule is prohibited by section 2094.1. A county may require bail agents to provide their fee schedules on all advertising, or post them in their offices, or the like. Since bail agents cannot deviate from these schedules, it would not affect their business plans. Because agents already report this information any argument of additional and onerous administrative cost from the industry is unlikely to succeed.

Title Ten provides some controls over what bail agents must and must not do (as linked above). By way of illustration, section 2076 states that bail agents cannot “enter into an arrangement . . . with . . . any other persons, to inform or notify [the agent] . . . of: (a) The existence of a criminal complaint; (b) The fact of an arrest; or (c) The fact that an arrest of any person is impending or contemplated. . . ”  This addresses the illegal means referenced above, whereby someone tips off an agent about a recent arrest, but perhaps a county would want to require more of bail agents, such as informing their potential clients of their right to an evaluation of OR before posting a bond for them. Certainly there could be clients for whom the price of bail is worth not waiting up to 48 hours for the evaluation of OR, but is there harm in ensuring that they are aware of that evaluation?

  1. A County Could Enact Policies or Practices to Address Bail Concerns

In this section, I will outline a possible legal argument that would enable courts to refuse to accept money bail temporarily until someone had been assessed for release on OR.  This would account for those inmates who pay unnecessarily to get out when they would have been released for free anyway.  The difference in release time is only a matter of hours.  The monetary difference, however, can be substantial.

A county can work to better serve their citizens’ bail interests without violation of the Penal Code. Because bail agents interact with the judicial system, the California Penal Code addresses the industry in relevant sections (e.g., §§1300-1304, and 1268-1276.5). I now address the specific case of a criminal defendant that has not yet been assessed for OR release, and potentially unaware of that possibility, and is attempting to post a bond through a bail agent. Consider that the officer in charge of a jail “may approve and accept” bail (P.C. 1269b(a), emphasis added) in a variety of forms, which potentially leaves the door open for them to not accept bail.  It follows that P.C. 1269b(g)’s language, “[u]pon posting bail, the defendant or arrested person shall be discharged from custody . . . .,” could be construed as bail is “posted” when money or bond for bail exists or, alternatively, when that money is approved and accepted.  The latter interpretation makes most sense in light of other penal code provisions, discussed below, which allow for refusal of money posted for bail.

On the other hand, PC 1275.1(e) states: “[n]othing in this section shall prohibit a defendant from obtaining a loan of money so long as the loan will be funded and repaid with funds not feloniously obtained” – more on that below.  So, while it is clear that there is no legal space for a government actor to prohibit a defendant from obtaining a loan or bond for their money bail – is it reasonable to have an officer in charge of a jail not approve and accept money, or a bond, that a defendant obtained until after the defendant is assessed for OR? Perhaps, but this raises another issue: I think that a refusal to accept payment for money bail that has been set by a competent court (in this case in the form of a bail schedule) as a condition for pretrial release would be a violation of the constitutional right to due process.  Some might think that a bail schedule that is not individualized is a constitutional concern, but remember that the defendant is about to be evaluated for an individual bail. By the same logic, something an official might be able to constitutionally do is to not accept bail temporarily, or during a predefined (and short) period of time.

I question if refusing to accept bonds for bail until after a defendant has been assessed for eligibility to be released on OR with no financial conditions may discriminate against people with fewer funds, who must rely on a bondsman because they cannot afford to post the full money bail amount. Further, the argument for this policy might be that it actually guarantees the bail amount is individualized – which in turn means that those who bail out on the schedule who have access to wealth can use this time period to get out on bail that is “cheap” (before it is individualized and adjusted to their means). However, these observations highlight some inherent problems in a bail schedule system.

I highly doubt there would ever be a defendant who would press the issue of not being bailed out for a nonrefundable 10% fee after being released on OR with no financial terms. (Alternatively, I doubt there would ever be an individual with proper standing).  Even if such a defendant were to press the issue, they would be pleading a matter of hours of detention, which probably does not rise to the level of a due process violation.  If this, or similar, policy were adopted it would address the very alarming and apparently perfectly legal process of bailing out people before OR assessment (at a price).

Additionally, a procedure could be put in place to have a boilerplate declaration signed by the peace officers during booking.  If the declaration, as required under PC 1275.1(a)(1), puts forth that the peace officer suspects the source of bail was “feloniously obtained” then denial of that bail would be appropriate. The statute clarifies that “‘feloniously obtained’ means any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution which is possessed, received, or obtained through an unlawful act, transaction, or occurrence constituting a felony.” For example, a plausible reason could be that the defendant was not made aware of their right to an OR evaluation and as such they were coerced, misled, or otherwise entered into a contract with a bondsman under fraud.  To clarify, the language would have to be interpreted that the bail was feloniously obtained because either the defendant or the bondsman was violating law.

Another reading might be that denial of bail is only appropriate if the defendant feloniously obtains bail.  This argument would have to put forth that the intent of this law is to prevent defendants from stealing, threatening, or otherwise using illegally obtained funds for bail.  One would have to argue that this California law is not intended to protect defendants from predatory loans.  Indeed, other states’ laws (see this article on an analogous NY insurance code) are not ambiguous on denying bail – namely that if in obtaining bail “the provisions of this or any other section of law have been violated” denial of bail is appropriate. One can follow this argument to the logical conclusion that if the defendant was taken advantage of, there is already appropriate remedy under other provisions of California law.

In conclusion, there is ample room for counties to implement ordinances to gather data in order to assess current practices and, either concurrently or not, ameliorate for known problems in the bail evaluation process.

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