Excessive Bail, Equal Protection, and the Plight of the Homeless

The hardships imposed by the cash bail system fall most heavily on the poor. It is difficult for poor people to pay bail or even raise the 10% that is a standard deposit for bail bond companies. This can result in an individual remaining in jail until their court date, or even until their case is resolved or goes to trial. Depending on the severity of the charges, this can take months or even a year or more. Time spent in custody can cause these people to miss work and possibly lose their job. They can potentially lose more than that. The cost of living is high in Santa Clara County and many people are only a paycheck or two away from losing their homes.

For those who are homeless, additional layers of difficulty arise. In my research for this blog post, I was unable to find statistics concerning the arrest and incarceration of homeless individuals specifically but I was able to gain insight about the unique challenges they face from legal professionals, case law, and homeless individuals themselves.

First, it is helpful to define what we mean by “homeless.” The U.S. Department of Housing and Urban Development (HUD) requires all communities that receive federal funds for issues relating to homelessness to compile biennial reports, which are then integrated into a summary report produced by HUD. All these reports use the federal definition of homelessness (PDF, page 14). This definition includes those people living in transitional housing or shelters, or those whose primary nighttime residence is a public or private place not ordinarily used as such.

According to the 2015 HUD report, San Jose had the ninth-highest population of homeless of all reporting cities in the nation (PDF, page 15). The city had the highest percentage of unsheltered homeless at 70.6% (PDF, page 16). This is a substantial population and because of the way homeless individuals are marginalized in our society, they frequently run afoul of the justice system. For instance, the homeless are often arrested or cited for so-called “quality of life” crimes. These include crimes such as vagrancy, littering and public urination to name only a few. They are the types of crimes that the homeless may commit just by existing.

In San Jose, when the homeless encampment known as “The Jungle” was dispersed in 2014, the residents were threatened with trespassing charges. Littering, shoplifting, and drug charges are also common charges brought against homeless individuals. Many homeless have long criminal histories filled with these low-level crimes.

For the homeless, the risk assessment tools used by the courts or Pretrial Services (PTS) don’t tell the full story. Risk Assessment tools use data about defendants to determine the likelihood that they will fail to show up for court, as well as whether they would pose a risk to society if released. The data generally analyzes the person’s past history of court appearance, criminal history, whether he or she has a job and a stable residence, and whether he or she has ties to the community.

All of these data points can prove particularly challenging for homeless people. It is often difficult for them to appear in court, due to transportation problems, difficulty in keeping track of paperwork and inability to receive mailed notice of scheduling changes. This can result in a record of missed court appearances, which will count against them in a pretrial report. They may have an extensive criminal history, often because of quality-of-life crimes tied to their homeless status.

Though some homeless people do work, most of them do not have jobs. Nor do they have stable homes or traditional ties to the community. In addition, they often have addiction issues or suffer from mental illness. San Jose’s 2015 biennial homeless survey reveals that 44% of respondents reported having addiction issues, 37% suffered from some kind of psychiatric or emotional condition, 28% were physically disabled and 22% suffered from Post-Traumatic Stress Disorder (PDF page 36). The combined weight of these factors can negatively influence whether or not homeless people will be held in custody or released.

While the scheduled bail amounts for the minor crimes homeless people are often accused of are low, they may still be insurmountable for people who have almost nothing. Even if the individual does have some form of income, it is difficult to open a bank account without a positive credit history. Though it can be possible through “second-chance” accounts, the bank or credit union will still want a verified address. They also charge higher fees. Without a bank account, homeless people risk the theft of any money they do have and they are less likely to have family members who can help them pay bail.

Additionally, District Attorneys may advocate for higher bail for individuals who do not have a residential address, family in the area, or traditional ties to the community, such as a job. If the D.A. is successful, the chance of release becomes even more elusive for homeless individuals.

While any person kept in custody risks losing a great deal, the homeless risk the loss of everything they own. When they are unable to keep an eye on their few possessions, those possessions are routinely stolen. Any rudimentary shelter they may have erected is likely to be occupied by somebody else. If they have pets – and some 40% (PDF, page 27) of San Jose’s unsheltered homeless do – Animal Control may pick them up. Sometimes, their animals are left to fend for themselves. Many of the pets belonging to homeless people provide service functions for these individuals. The loss of these animals can be devastating.

The Eighth Amendment to the United States Constitution reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” It is difficult to see how bail amounts set according to Santa Clara County’s bail schedule can be anything but excessive when assessed against homeless individuals.

Recently, there has been a growing movement to fight cash bail schemes on the basis of Equal Protection. The argument is that these schemes create an unequal system that allows people with monetary resources to obtain release from custody by paying cash bail or, more commonly, paying a bail bond company while the poor are unable to do so.

The Federal government has chimed in on the issue, filing a Statement of Interest in Varden v. City of Clanton, the Alabama case cited in the above article. In its Statement, the government argues that long-standing precedent prohibits “punishing a person for his poverty.” Bearden v. Georgia, 461 U.S. 660, 671 (1983) (probation cannot be revoked for failure to pay a fine). Although many of the cases cited in the Statement are not directly related to bail, they do relate to inability to pay creating an unequal burden on poor people.

At the heart of the Alabama case is the bail schedule. Simply put, a bail schedule is a tool that lists every criminal charge and the corresponding amount of cash bail that can be set for an alleged violation of that charge. In this case, the bail schedule based the amounts solely on the type of offense charged.

To contrast this type of system, the Statement references the federal Bail Reform Act of 1966, which requires federal judges to “conduct an individualized analysis of each defendant prior to ordering pretrial detention.” (Statement of Interest, PDF page 6) The purpose of this requirement is to “ensure that pretrial detention is based on an objective evaluation of dangerousness and risk of flight, rather than ability to pay” (PDF page 7).

The government’s position is that failure to conduct such analysis violates the Equal Protection Clause of the 14th Amendment. Citing several cases that reject sentencing or early release schemes that treat poor people differently than those with more resources, the Statement explains that “the Court’s Fourteenth Amendment analysis applies in equal, if not greater force to individuals who are detained until trial because of inability to pay fixed-sum bail amounts. Liberty is particularly salient for defendants awaiting trial, who have not been found guilty of any crime” (Statement of Interest, PDF page 8) Fixed-sum bail schedules “essentially mandate pretrial detention for anyone who is too poor to pay the predetermined fee” (PDF page 9).

In Santa Clara County, the requirement to conduct an individualized analysis of each defendant is fulfilled by Pretrial Services (PTS). PTS officers work in the booking area of the jail, where they are able to interview people who have been newly arrested. Using their own risk assessment tools, the PTS personnel reach a determination about whether the individual should be released and what form that release should take. They then draw up a report that includes their recommendations concerning release and that report is given to the judge at the defendant’s arraignment. This system is meant to provide judges something more than just a bail schedule to utilize when setting bail amounts.

Unfortunately, it is largely accepted throughout the court system that judges often ignore PTS’s recommendations. Some judges do not trust risk assessment tools, preferring to rely on their own experience and “gut instincts.” Others do not take the time to read them. Students from the Crim Law and Policy class have been attending arraignments and have estimated the average length of time spent on each individual as less than five minutes. This does not permit a lot of time for judicial review of documents.

Additionally, defense counsel is not in a strong position to argue bail amounts at arraignment. A public defender has only the complaint to guide him or her until formally appointed as counsel. When that happens, the District Attorney will provide the police reports associated with the charge and PTS will supply a short summary of its report. Counsel has no time to properly review these documents nor do they generally provide enough information to make an informed argument on the client’s behalf. Nor does counsel have time to confer with his or her client at arraignment. The process is chaotic and fast-paced, with defense counsel meeting and being appointed to serve multiple clients.

The result is that bail for defendants who are not released on their own recognizance will be set according to the bail schedule, which is based solely on the offense. In other words, though there are processes in place to provide the individualized assessment the government called for in its Statement of Interest in the Alabama case, if they are being ignored or bypassed, our system is not much different than that in the City of Clanton.

The director of Santa Clara County Pretrial Services (PTS) told me the office often recommends own recognizance (O.R.) release for homeless offenders. As we have seen however, judges regularly choose to ignore these recommendations. This is often based on concerns about failure to appear. Imposing conditions of release on the homeless can be problematic as well, since conditions such as regular reporting for drug testing or mandatory domestic violence counseling can be difficult for homeless individuals to fulfill. Transportation to and from these appointments can be hard to arrange. Additionally, many of the conditions require the defendant to pay for them. Because of these challenges, judges routinely find it more expedient to deny O.R. to homeless people.

The Statement of Interest enumerates the many reasons reliance on this type of bail schedule is a poor way of operating. When people cannot afford bail, it creates a strain on jail populations, creating safety risks for correctional officers and inmates alike. Incarceration is expensive for society, with the U.S. Department of Justice estimating that local communities spent $22.2 billion on jails in 2011. Incarceration causes heavy social burdens for the inmate and his or her family. When that inmate is homeless, those burdens are often multiplied in surprising ways. For instance, if the person is receiving some types of government aid, they may lose it because incarceration prevents their meeting certain requirements. Pretrial detention can also have an adverse affect on the outcome of the case for the defendant. Individuals kept in pretrial detention are more likely to receive a jail sentence than those who are released. Additionally, those sentences tend to be longer.

Bail systems based only on type of offense charged also do little to ensure the safety of the public or to combat the problem of defendants who fail to appear. While a poor or homeless individual may remain locked up, an individual with more resources who is being held for the same offense can simply pay a bail bond company to gain his release. In that event, there is nothing in the arrangement that guarantees either his future appearance in court or public safety. This, according to the Statement of Interest, is “not only unfair, but constitutes bad public policy.” (PDF page 11)

So what can be done to make the bail system more equitable, while still fulfilling the goals of public safety and court appearance? It seems to me there are several things that could help.

For one thing, judges should be educated about risk assessment tools, how they work, what their effectiveness rate is, and how they are validated. There is a great deal of anecdotal evidence that judges routinely ignore the recommendations of PTS, preferring to rely on their “gut instincts” instead.

Another area that needs to be examined closely is the bail bond industry. It may be that bail bonds serve an important function but there are serious issues of inequality, accountability and effectiveness that should be addressed. Changes in laws regulating the industry may be a solution. Eliminating them altogether might work in conjunction with other changes.

There should also be more resources in place for homeless individuals. The lack of shelters for our homeless population is disturbing and needs to be addressed. If these individuals had safe places to sleep, to shower, to eat, it seems likely that quality-of-life crimes would decrease. Additionally, they might be granted O.R. or conditional release more often if they had places they could go.

The way we police the homeless should be examined as well. I have talked to many people in the homeless community who appreciate the good work many area police officers do. I have been told of officers who make a point of getting to know the homeless people on their beat, taking an interest in their lives and trying to protect and serve them as they do the rest of the population. Others however, engage in routine harassment, repeatedly arresting the same individuals for minor offenses and treating them with contempt. Homeless encampments are regularly destroyed and the inhabitants scattered, though they have nowhere to go and lose what little possessions they had in such raids. There has to be a better way.

Finally we need to take a hard look at our existing bail schedule. These schedules are set by each county and are often vastly different in terms of the amounts set for the same offenses. For instance, bail for a charge of Penal Code section 529, False Impersonation, carries a bail amount of $10,000 in Santa Clara County (PDF page 39). In Kern County, the same charge carries a bail amount of $20,000 (PDF page 17). It is difficult to see how False Impersonation is so much more serious in Kern County to rate double the bail amount. And since the median income in Santa Clara County is more than twice that in Kern, the amount does not seem to based on ability to pay. It may be that the way California sets its bail schedules should be revamped to provide a more equitable distribution.

The Statement of Interest in Varden v. City of Clanton begins by stating:

It is the position of the United States that, as courts have long recognized, any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy (emphasis added; PDF page 1).

            I believe this should be the position of any competent and compassionate government.

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