The problems regarding judges and bail have been discussed in my previous posts. Although the issues are real and, in some ways, disheartening, there are some possible solutions to the problem.
Since California Superior Court Judges compete in nonpartisan races, citizens can vote and have an effect on the judges serving their county. Nonpartisan races for judges are held every June and November of even numbered years. Many judges are appointed by the governor instead of via a nonpartisan election; however, those terms have limits and judges must participate in an election in order to keep their judicial seats. Superior Court (trial court) judges serve staggered six-year terms. Every two years a third of the superior court judges are up for re-election.
There are a few ways that the public can influence which judges sit on the bench in their county. Whenever a judge retires and there is an open seat in between nonpartisan elections (such as in an odd-numbered year), the governor appoints an individual to office, which unfortunately the public has no control over. However, once it is time for an election, those individuals run as incumbents and usually have no opponents. In fact, 90% of incumbent judges run unopposed. Something surprising regarding the election process is when two or more candidates run in June, anyone who gets more than 50% of the vote is elected, but when neither candidate gets over 50% of the votes they must run again in November.
When the public is informed about the candidates running for judicial office we can select individuals who will serve the people best, including the indigent community. Voters can get information about candidates from the local newspaper, sample ballots, State Bar Association, and candidate’s campaign literature in order to be properly informed. The League of Women Voters of California perfectly summarized why citizens should vote for judges:
“Judges must deal with everything from minor disputes to society’s most intractable problems. Their decisions have as great an impact on our lives as decisions made by the governor or legislator. The governor alone selects those who will serve on the bench. But at election time, voters become the judges of who is qualified to remain there. Those who vote are exercising an important opportunity to maintain the balance between judicial independence and accountability.”
The 2014 general election consisted of ten contested races in which two incumbents were defeated. In fact, Santa Clara County Superior Court was one of the few places where an incumbent was defeated. This particular incumbent took office in 2008 and has been scrutinized throughout her career as a judge for her judicial decisions. This is just an example of how the public can have an effect on the judges in their county. Citizens should not just vote, but be informed on the individuals they are voting for since they have the power not only to vote judges into office, but also vote on who will remain in office. Just because a judge has served the position since 2008 does not make that individual right for the job.
Voting and being informed about the attorneys running for judicial office is one possible way to fix the problems with bail, but also improving the training of judges before and during their term is key to fixing bail. I have discussed at length the issues regarding judicial training. Although there are many resources available to judges, the timing component is an issue because judges are not required to receive extensive training before they begin hearing cases. Requiring judges to be trained in the specific area of bail before they take the bench can help judges be informed before they form their own opinions and decisions on how to handle bail. Maybe the discrepancies between different judges that I discussed in my last post would not be as present if all Superior Court Judges were uniformly and timely trained on issues such as bail. Along with other issues in criminal justice, the issue of bail has changed significantly over the years. Since issues and policies are always changing, judges should be continuously trained during their career, not just in the early years of their judicial career.
Previously I discussed how judges are required to complete thirty hours of continuing legal education every three years. Judges can complete these hours in different ways, but having training specifically on the evolving bail issues available throughout a judge’s career will better inform judges of the issues facing the community regarding bail. In my last post I discussed the opinions of a judge who has been on the bench for nearly thirty years. He is a perfect example of a judge being very experienced and set in the ways he operates his courtroom. Since this judge has not been to judges’ college or orientation in nearly thirty years, he may not be as informed on relevant issues, or how these issues might have changed. By providing judges with continuing legal education specifically on issues such as bail, judges will at least be aware of issues and concerns regarding bail.
In my first post I discussed the judicial training procedures in New Jersey. One area that California can easily mirror New Jersey on is the Division Comprehensive Judicial Orientation Programs (CJOP). This program requires immediate judicial training, specifically tailored to the area of law the new judge will be practicing. California has similar programs already in place, but there is no requirement for this training to be immediate. This a simple and seemingly cost-effective solution to the timing issue regarding judicial training.
I also previously discussed the factors judges in New Jersey are required to consider when setting bail compared to the factors judges in California are required to consider. The list in New Jersey is much more lengthy and encompassing then California. Judges in California should be required to consider factors similar to New Jersey such as; defendant’s mental condition, length of defendant’s residence in the community, defendant’s family ties and relationships, defendant’s employment status, identity of responsible members of the community who would vouch for the defendant’s, and any other factors indicating defendant’s mode of life, or ties to the community or bearing on the risk of failure to appear. Many judges may already consider these factors when setting bail, but it is not specifically stated in the statute. If judges were required by statute to consider these factors they might ask more questions of the defendant and defense council when setting bail, or review as much material as possible regarding the defendant before setting bail. Judges in California are only required to consider protection of the public, seriousness of the charge, the defendant’s criminal record, and likelihood of returning to court. By adding the factors that New Jersey judges consider when setting bail California judges might be more uniform when setting bail and spend more time reviewing each defendant’s case before setting bail since there is a more personal and extensive list of factors that they must consider.
I am someone who has been around the criminal justice system for many years before attending law school. The issue of bail was something I always thought about, but never gave the issue a second thought. Classes like Criminal Law and Policy that are informing future lawyers is a simple step to solve any legal problem, particularly bail. Holding the players accountable not only brings the issue to the public’s attention, but it can also hold bail agents, lawyers, judges, and all other players accountable for their actions.