In an earlier post, I detailed the California Supreme Court case, Van Atta v. Scott, which “changed the game” for all in-custody defendants seeking pretrial release on their own recognizance. To recap, the court held that keeping a defendant in custody before trial is an infringement on individual liberty under the 14th Amendment. Courts may not violate someone’s liberty interest without due process of law. Due process in this case requires the prosecution to prove that a defendant should be held pretrial, rather than requiring a defendant to prove to the court that he or she should be released. By placing a burden on the prosecutors, I assumed the Van Atta decision would make it easier for defendants to be released on OR. The way the court described the harm of pretrial detention gave the impression that prosecutors would face a difficult task in keeping defendants detained pretrial. Turns out that’s not the case.
Since the ruling in Van Atta, the number of defendants released on OR has actually gone down. The Bureau of Justice Statistics conducted a study of the 75 most populous counties in the United States, twelve of which were in California. The study showed that from 1990 through 1994, release on OR accounted for roughly 41% of all pretrial releases, whereas surety bond accounted for only 24% of releases. However, in 2002 through 2004, surety bond releases increased to 41% of all releases, while the number of defendants released on OR decreased to just 23%. (pdf pg. 2). In addition, from 2000 to 2009, California’s largest urban counties relied on pretrial detention more than urban counties in other states. (Figure 3). These statistics suggest that Van Atta has not really had any meaningful impact on defendants requesting release on OR.
The infrequency of OR release lead me to question my assumption that Van Atta made it more difficult to detain defendants pretrial. The initial reaction is to assume that judges are not holding prosecutors to their standard of proof, and thus ignoring the California Supreme Court’s ruling. However, upon further review, that answer is too simple. The reason Van Atta has not made it easier for defendants to be released on OR is two-fold. First, the decision itself does not provide trial court judges with sufficient guidance about how to implement its ruling and change the OR determination process. Second, and perhaps most important, the rules in place that govern pretrial detention and release procedures make it easy for prosecutors to meet their burden.
Like many appellate level decisions, Van Atta leaves California trial courts with a stated principle of law, but without much detail about how that principle should be implemented. The principle itself is simple enough. The People now bear the burden of proving why a defendant should not be released on OR pretrial. However, the court does not explain what standard the People are required to meet. It does not say whether it is by a preponderance of the evidence, clear and convincing evidence, or evidence beyond a reasonable doubt. Prosecutors are simply required to prove that a defendant should be denied OR. Imposing a burden without clearly defining the standard by which it is supposed to be applied makes the burden relatively meaningless. It provides no guidance to either prosecutors or judges.
Another issue with the Van Atta decision is that it creates a rule of law that, in practice, contradicts the California Constitution. Article 1 Section 12 of the California Constitution states that a person “shall be released on bail by sufficient sureties.” In contrast, the same section states, “a person may be released” on OR in the court’s discretion. The distinction between may and shall is important because it establishes that one is required, while the other is permissive. Every defendant, except for a few limited exceptions, must receive surety bail. On the other hand, no one is entitled to release on OR. However, under Van Atta’s rationale, courts no longer have discretion over the decision to grant OR release. They must do so if the prosecutor is unable to prove otherwise.
For example, let’s assume that a defendant is arraigned on a non-capital felony offense. The court is required to set bail for the defendant. After arraignment, the defendant makes a motion requesting release on OR. If the prosecutor offers no argument in opposition to the motion, then under Van Atta the state has not met its burden of proof, and the court would have to release the defendant. Therefore, Van Atta creates a situation in which defendants receive a presumptive right to OR as soon as they request it. It effectively takes away the discretion of courts under the California Constitution. What’s left is an unworkable rule that’s difficult to implement. How does a court place a burden of proof on prosecutors without creating a presumptive right for defendants?
Perhaps the answer is that courts may still refuse to grant OR release sua sponte (i.e. within their discretion) even if a prosecutor does not meet the burden of proof. That certainly comports with the discretionary language of Article I § 12. But of course, that doesn’t fit with Van Atta. According to the court, it was unconstitutional for San Francisco Superior Court judges to require defendants to prove that they should be released on OR. However, if judges may still deny OR release without a prosecutor making an argument, then nothing has changed. We are still left with the problem of defendants fighting to convince judges that they deserve to be released.
Even if we assume that Van Atta did create a workable rule that imposes a burden on the People to prove that a defendant should be denied OR, the rules of the game make it easy for prosecutors to meet that burden. When the Court decided Van Atta, the defendant’s likelihood of appearing at future court proceedings was the only determination courts had to make when deciding whether or not to grant OR. Public safety was not a factor when Van Atta was decided, but now it is the primary factor.
It follows that if the prosecution bore the burden of proving a defendant’s likelihood of appearance, the prosecutor now also bears the burden of proving that a defendant is a risk to public safety. Proving that risk is not terribly difficult when there is apparently a rule in California Superior Courts that a judge must accept as true all allegations filed in a criminal complaint. I say “apparently,” because the rule actually does not exist in any statute, regulation, or local rule. But I’ve heard prosecutors and judges reference it in open court. Supposedly it originates from an 1879 California Supreme Court decision, Ex Parte Duncan. In that case, the defendant was in custody and he petitioned the court to reduce his bail. The court denied the request, stating that “we must assume in this proceeding that the petitioner is guilty of . . . the felonies of which he is indicted.” The words “in this proceeding” are crucial because it means that the court was limiting the presumption of guilt to situations in which a grand jury had already decided that there was enough evidence to charge the defendant with a crime. However, the rule has expanded over time, and many judges now presume guilt at all stages of the criminal justice system for purposes of bail. The result is an incredibly powerful tool for prosecutors.
The prosecutor can effectively argue that a given defendant is a threat to the public simply by virtue of filing charges of criminal behavior that paint the individual as a threat. The evidence doesn’t have to be weighed, and judges don’t have to consider any mitigating factors absent from the complaint. The ability of a judge to presume that a defendant is guilty for purposes of setting bail makes the prosecutor’s job of fulfilling his or her burden of proof substantially easier.
I learned through watching felony arraignment and bail motion proceedings in Santa Clara County that Van Atta has not really made it a challenge for prosecutors to successfully oppose a motion for OR. In over 70 arraignments and pretrial bail motion proceedings of in-custody felony defendants I saw judges grant OR, or supervised OR, only five times. In one case, the prosecutor was able to convince the judge to deny OR because the defendant had allegedly told his victim, “I am going to f*** kill you.” The judge said that she must believe that the defendant did make the statement, and denied OR on the basis that defendant was a threat to public safety. The entire argument lasted three minutes. This was the norm during most motions for OR release and it was not the type of adversarial proceeding I envisioned after reading Van Atta.
Although I viewed Van Atta v. Scott as a landmark decision for defendants, it really hasn’t had a meaningful impact on the amount of defendants released on OR. It may be easy to blame the judges and prosecutors for ignoring the decision and not adhering to precedent. However, I think it is more nuanced than that. Even if the parties within the criminal justice system believe that they are adhering to Van Atta, our bail determination procedures render the decision toothless. It is clear that if anyone is serious about addressing issues regarding bail and pretrial detention, meaningful statutory reform is necessary. Litigation, even at the highest level, may not be enough.
 This is a very unlikely scenario, but illustrative nonetheless.