As an aspiring prosecutor, I was ambivalent to the issues of commercial bail and its negative effects on criminal defendants. My default allegiance is to victims of crime and my sympathy for the accused only goes so far. However, over the course of this semester, I have learned that the commercial bail industry does not serve the interests of justice that I thought it did. It does not do more to ensure public safety than other pretrial release alternatives, and it creates a large in-custody pretrial population which is costlier than other release alternatives. However, bail reform advocates still have one glaring problem that needs to be addressed before completely eliminating the practice of commercial bail in California. That is the problem of extradition.
Extradition is the legal process of returning a criminal defendant accused or convicted of a crime back to the jurisdiction that he or she fled in order to avoid prosecution. Extradition is typically thought of in the international context. The federal government will seek to extradite criminals that flee the United States to other countries, and vice versa. Think El Chapo, Edward Snowden, or Roman Polanski. However, extradition also occurs among the various states as well. Extradition is relevant to the issue of bail reform because if a defendant is released pretrial and flees the state, it becomes necessary to extradite the individual back in order to face prosecution.
The Bureau of Justice Statistics reported that between 1990 and 2004, anywhere from 21% to 24% of individuals on pretrial release in the 75 most populous counties nationwide failed to appear at a future court date. (pdf pg. 8). Of those individuals, 28% still remained fugitives one year later. (pdf pg. 8). The report does not indicate how many of those individuals who remained at large fled the prosecuting state and are subject to extradition. However, the data suggests that a portion of criminal defendants are successfully evading criminal prosecution by fleeing. Admittedly, it is a small amount. But the size of the criminal fugitive population is not what’s alarming. It’s the reason they remain at large that is troubling.
USA Today did an extensive report on fugitives escaping prosecution by fleeing across state lines. They discovered that the reason fugitives are successful is not because no one can find them. They are successful because prosecutors and law enforcement simply stop pursuing them. The report indicated that states have given up pursuing over 330,000 accused felons beyond state borders nationwide. County prosecutors are responsible for deciding whether or not a defendant captured in another state will be extradited. They input that decision into the National Crime Information Center (NCIC). The NCIC is an FBI database that includes all known fugitives across the United States; it is accessible by law enforcement agencies across the country. When police stop someone on the highway or book someone into jail, the first thing they do is check to see if the person’s name appears in the database. The system notifies police whether or not the person they arrested is wanted for another crime in another state and whether or not the arresting agency is willing to extradite the individual back to the state where the crime was committed.
An example might be helpful here. Let’s say Felix Flighty is arrested and accused of robbery in California. Mr. Flighty is then released from custody via bail, OR, supervised OR, etc. Fearful of what will happen to him, Mr. Flighty takes off for Nevada. He makes it across the border successfully, but is soon stopped by a Nevada police officer for exceeding the speed limit. The Nevada officer checks the NCIC and sees that Mr. Flighty has an outstanding bench warrant for failing to appear at his arraignment on the robbery and assault charges. However, the officer also notices that the agency that issued the warrant is unwilling to travel outside of California in order to bring him back to face the charges. Powerless, the Nevada officer can do nothing more than give him a traffic ticket and let him go.
It is not just low-level offenders that are being deemed “non-extraditable.” California counties have decided that 20% of all defendants accused of assault and 15% of defendants accused of violent crimes are non-extraditable. (Chapter 3). Three of San Bernardino County’s most wanted fugitives were deemed non-extraditable by county prosecutors. (Chapter 2). That includes a man accused of aggravated sexual assault of a child and lewd acts with a child under 14.
The primary reason for not pursuing a fugitive beyond state lines is cost. The Los Angeles Times reported that the average cost of extraditing a fugitive back to California in 1989 was $900. Adjusting for inflation, that amounts to roughly $1,728 today. As stewards of public funds, prosecutors are leery of using taxpayer money to fund such a costly endeavor unless they are certain it will be worth it. Thankfully in California, prosecutors have the ability to pass a majority of the cost onto commercial bail bonds companies.
Under California Penal Code § 1306(b), if a defendant is released on a commercial bail bond and then flees, the county can recover the cost of extraditing that defendant from the commercial surety that posted the defendant’s bond. Let’s return to our Mr. Flighty hypothetical. If Mr. Flighty bailed out of custody thanks to XYZ Bail Bond Company, the state could require XYZ to reimburse the cost of bringing Mr. Flighty back from Nevada. However, if Mr. Flighty were released on OR, or supervised OR, then the county would bear the cost of bringing him back. Therefore, commercial bail gives states an incentive to extradite more fugitives because it removes the single greatest deterrent to extradition. Without commercial bail, or something comparable, I fear that we could see an increase in the number of non-extraditable felons.
We’ve seen this nightmare scenario play out in the real world. Back in 2009, the city of Philadelphia reported that fugitive criminal defendants owed the city over $1 billion in outstanding bail forfeitures. The reporters claimed that the debt was due to poor collection practices by state courts. Conservative groups blamed the city’s policy initiative that eliminated the use of commercial bail bondsmen. The Pretrial Justice Institute claimed the whole thing was misleading because the debt was artificially inflated by arbitrarily high bail amounts. (pdf pg. 13). Everyone was focused on the monetary value of the debt. What they all ignored was the correlation between the use of commercial bail and a county’s willingness to extradite fugitives.
(For the purpose of this next paragraph, follow this link and scroll to the end of Chapter 1. Enter Philadelphia County, PA in the search bar)
The previously referred to USA Today report indicates that the national average of non-extraditable fugitives is 16%. The average for the state of Pennsylvania is 61%. The average for Philadelphia County is 100%. In other words, prosecutors in Philadelphia will not seek extradition for a single fugitive that escapes beyond state lines. This failure to extradite corresponds with the state’s efforts to decrease reliance on commercial surety bail. All good statisticians will tell you that correlation does not prove causation. But any good attorney will tell you that circumstantial evidence can be damning.
As an aspiring prosecutor, I fear creating a system that gives criminals an incentive to evade justice. I am afraid that if California eliminates the practice of commercial surety bail without addressing the costs of extradition, we will do just that. Right now, the number of defendants that California counties refuse to extradite is about on par with the national average. However, if we eliminate the ability to pass the costs of extradition off to commercial bail bonds companies, I am afraid that number will increase to the levels we see in Pennsylvania. There are studies which indicate pretrial services can have a meaningful impact on overall failure to appear rates; however, that’s pretty low hanging fruit. People who fail to appear simply because they forgot their court date and need reminding are not terribly worrisome. Prove that pretrial services does a better job of addressing the problem of preventing people from actively evading justice, and then no one can argue against reform.
 This is the most recent time frame in which these statistics are available