It’s Hard to Understand When You Don’t Speak English

A common thread running throughout my and my colleagues’ research this semester is that issues surrounding bail are confusing and often unclear. There have been numerous times when my classmates and I have asked each other what something meant before we could move any further in our research.

I found this was the case in my research and analysis of bail contracts. I’ve taken a yearlong course in contracts and I had trouble defining some of the terms in the contracts, so I can only imagine what it is like for individuals who have no idea what legal terms in the contracts mean. One area that I haven’t addressed is what happens when the defendant does not speak English. Are the contracts translated into the language the individual speaks? Are they translated correctly? Do bail companies have employees who speak languages other than English? It is important to find the answers to these questions because in California, Civil Code Section 1632 requires that when doing business with an individual who doesn’t speak English, the contract has to be in the language that the individual speaks. The entire contract, as well as individual terms, must be translated correctly. I will look at how bail contracts comply with this law later in this post.

In Santa Clara County there are many individuals who don’t speak English who move through the criminal justice system. I was unable to find a statistic stating how many individuals in the Santa Clara County jail do not speak English, but I have interned at the Santa Clara County Public Defender’s Office and have worked with clients who don’t speak English. Spanish and Vietnamese are common languages in this county. If a criminal defendant does not speak English, an interpreter is provided to him when he appears in court. The county provides this service. But what about the defendants who are trying to bail out of jail? Most bail agents don’t take the time to explain every term of the contract when first obtaining a defendant’s business. It’s usually a quick conversation about the 10% payment and agreement for the defendant to sign the contract once he or she gets out of jail. One can assume it’s even less when the defendant doesn’t speak English.

California Civil Code Section 1632, “Translation of contracts negotiated in language other than English; necessity; exceptions,” is the applicable law for these issues. Subsection (b) states:

Any person engaged in a trade or business who negotiates primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, orally or in writing, in the course of entering into any of the following, shall deliver to the other party to the contract or agreement and prior to the execution thereof, a translation of the contract or agreement in the language in which the contract or agreement was negotiated, that includes a translation of every term and condition in that contract or agreement.

This statute was enacted to increase consumer information and protections for the state’s sizeable and growing ESL population. ESL stands for English as a second language. When the statute first passed, it was directed at protecting the Spanish-speaking population in California, but has since been amended to include other languages.

For instance, a Spanish-speaking defendant calls a bail bond company to try and bail out of jail. The defendant does not speak any English so he and the bail bondsman converse in Spanish. Under section 1632, the contract that defendant eventually signs must be translated into Spanish. The contract terms I analyzed in my first post would also have to be correctly translated into Spanish.

What happens if a bail bondsman violates section 1632? Subsection (k) states, “Upon failure to comply with the provisions of this section, the person aggrieved may rescind the contract or agreement,” and “the consumer shall make restitution to and have restitution made by the person with whom he or she made the contract.” In Vargas v. Wells Fargo Bank, N.A. (2013 WL 117591), the court found that rescission is the only remedy under this section. There was a proposed bill in 2007 that would allow for actual and civil damages as a remedy in addition to rescission, but that bill did not pass. It is unclear how rescission would work with a bail contract, as I was unable to find any caselaw that could give some guidance.

I was able to obtain a bail contract in Spanish from Bail Hotline Bail Bonds, a bail bonds company here in Santa Clara County. My colleague, Carlos Barba, who is fluent in both languages, looked at the Spanish and English contracts to see if the Spanish contract had been translated correctly. Aside from a few spelling errors on the Spanish contract, it had been translated correctly. This was encouraging to see that at least on paper, this bail company was not trying to mislead Spanish-speaking defendants.

I am not sure if any of the bail companies are aware of Civil Code Section 1632, but I discovered the following facts about how different bail companies in Santa Clara County handle clients who don’t speak English.

At Bad Boys Bail Bonds, they have individuals in the office who speak Spanish and translators they can reach out to when necessary. However, they do not offer contracts in Spanish, which is in direct violation of section 1632. My hope is that they negotiate with the defendant in Spanish and then translate the contract orally, but I do not know if that is the case. Even if they do, this is not what section 1632 requires. At Bail Hotline Bail Bonds, they have people in the office who speak Spanish and also have contracts available in Spanish, as I mentioned above. At All Pro Bail Bonds, they have translators available at other office locations who can be called to help assist in speaking with clients. I was not able to find out if they provided contracts in Spanish.

After looking extensively at bail contracts in my series of posts, I believe that defendants are routinely misled by bail bondsmen, at a time when they are in desperate circumstances. Currently, there are advertisements posted in the “tank” at the Santa Clara County Main Jail for all the possible bail bonds companies a defendant can call to bail out of jail. It is unrealistic to think that during that initial phone conversation, a bail bondsman is explaining every term in the contract that the defendant is agreeing to.

Over the course of this semester, a recurring theme I touched on in my previous posts is that defendants are at their most vulnerable point when they are arrested and thrown in jail. It is at that point that they are desperate to get out of jail. Bail bonds companies are aware of this and use it to their advantage. There seems to be zero accountability for bail bondsmen who cut corners and don’t explain to defendants what they are agreeing to in a contract. All the power is in the hands of bail bondsman and that is something I would like to see change.