Slamming Down the Gavel on Judges and Bail

My last post discussed formal requirements that judges are required to use when setting bail for defendants in California. As in many other areas of the law, what you are supposed to do and what actually happens in practice often deviate.

Bail is set by the bail schedule and then a judge can adjust the bail amount. Because the bail schedule is determined by the statutory offense and not the facts of each individual case, judges should not solely rely on the bail schedule when making determinations. Judges have a wide range of factors they can look at when setting bail that I have previously discussed (community ties, risk to society, etc.). Much of the individual information is in PTS and police reports, which judges can review at arraignment. Additionally, during arraignment, defense and prosecution can raise specific arguments or facts not contained in those reports. Finally the judge can, and often does, ask specific questions of the defendant, the counsel, and others present. (See PTS in custody arraignment process.)

gavelI interviewed a Santa Clara County judge who has been a felony judge for nearly twenty-five years. In that interview I learned specifics on how judges reach individual determinations of bail. In his opinion, most Santa Clara county judges seem to go with the pre-determined bail schedule. In fact, while watching 54 felony arraignments in Santa Clara County 37 (68.52%) of the cases had bail set based on the bail schedule. This data was gathered by students in Santa Clara Law Criminal Law and Policy watching court. This particular judge starts with the bail schedule to get an idea of what bail would be for a given offense. Because he knows that the bail schedule is not controlling, he then looks at other factors. Since this judge works with primarily felony criminal defendants, he gives great weight to the police report when setting bail. Whenever the police report reflects injury to a victim he wants to know during the arraignment what the status of the victim is before setting bail. In his experience during the arraignment, defense normally describes the defendant’s ties to the community, if they have stable residence, employment, etc. which are always factors that this judge takes into consideration. (Information based off an interview with a Santa Clara County Superior Court Judge).

Something that this judge stated, which may be surprising to some, is that he does not give great weight to the PTS report for a few important reasons. First, in his experience, most felons are not willing to give PTS accurate information. Further, defense counsel is more likely to have accurate information regarding the defendant than PTS. Second, since this particular judge has more experience than most judges handling felonies, he is in a better position than PTS to determine a defendant’s risk to the community based off his knowledge and experience.

So why does this matter?

From interviewing and watching many different judges in court, each judge is very different and makes their decisions regarding bail very differently. This is problematic because defendants should be treated the same no matter which courtroom they are in. We are aware that from county to county the bail schedule for the same crime may vary, but defendants should be treated similarly in the same county, especially in the same courthouse. As I have learned, this is not the case because of the inconsistencies among judges.

I also interviewed and observed another Santa Clara County Superior Court Judge, who in fact was in the courtroom next to the judge discussed above. This judge had very different viewpoints and opinions regarding bail. The calendar I observed was mostly in-custody arraignments, meaning these individuals had recently been arrested and had not posted bail upon arrest. This particular calendar was on a Tuesday afternoon and these defendants potentially could have been arrested as early as Thursday. While a defendant’s right to a speedy trial requires a court appearance within 72 hours, weekends and holidays are excluded. This is the defendant’s first appearance in court since their arrest where bail is set for those in custody who have not yet posted bail. When setting bail, this judge only deviated from the bail schedule three times out of thirteen cases and never followed any positive recommendations by pre-trial services.

Most surprising during this calendar was a case with two in-custody co-defendants. The bail schedule reflects that certain crimes (murder, gross vehicular manslaughter while intoxicated with priors, kidnapping for ransom) have no bail amount and the defendant should remain in custody based on the severity of the crime.(see pg. 8) T he prosecutor was requesting no bail on both defendants based off special circumstances (e.g. kidnapping for ransom). This particular case involved a kidnapping for ransom so the prosecutor requested no bail, however, if bail was to be set he requested the amount for each defendant to be $2,000,000. The public defender was requesting that one of the defendant’s be represented by the Alternate Defender’s Office (ADO). The judge then proceeded to read the facts of the case for three minutes and decided to set bail for each defendant at $1,000,000.

During an interview after the calendar, the judge gave her reasoning behind this decision and the potential downfalls with a pre-trial service report. The case discussed above was a co-defendant case based off the same crime and same circumstances. One pre-trial service report requested that the defendant have no bail and remain in custody. The pre-trial service report for the other defendant requested that the individual be released on OR, not even SOR. The judge explained how this is a prime example of why she distrusts pre-trial service reports, because they can often be very inconsistent. In fact, during her calendar, when defense counsel referenced the pre-trial service report, the judge then asked for time to read the report. She spent as little as nine seconds and at most thirty five seconds to read the report. When asked if this judge relies heavily on police reports, she responded stating that she does not read police reports before arraignments and in fact is not allowed to because of California law. (information based off an interview with a Santa Clara County Superior Court Judge).

Each judge is entitled to his or her own discretion when setting bail. Clearly, different judges take different factors and resources into account when setting bail. The issue with this process is that defendants can be treated very differently when in front of different judges. If one judge relies heavily on a police report, and another judge does not even read the police report before setting bail, how can that be consistent? Moreover, if one judge does not read a police report and spends little or no time reading a pre-trial service report, what factors are they actually considering about the defendant before setting bail? Since public defenders are not appointed to the defendant until arraignment, they have not had any opportunity to review any documents or discovery regarding their client. Even if there were factors that could potentially lower bail or release a defendant on OR or SOR, defense counsel is not aware of that information prior to arraignment in order to be able to make some objection during the proceeding. Therefore, the only thing that judge actually knows without a police report or pre-trial service report is the underlying charge that the defendant is being accused of.

Judges are required under Penal Code §1275(a) to review 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. The statute does not state that judges are required to review solely the seriousness of the offense, which seems contrary to some judges’ methods of practice.

So, where do we go from here? Is the issue regarding bail with a lack of training and knowledge? Are judges so set in their methods of practice that no amount of training can help this problem? My last post will discuss the possible solutions that can be enforced in order to help solve the discrepancies and issues among judges and bail in Santa Clara County.