Why accepting credit cards for bail won’t help poor individuals secure pre-trial release.

One of the recommendations made by the Santa Clara County Bail Working Group is to accept credit cards or debit cards at county jail facilities. [Revised Bail and Release Report, Page 10].  Defendants with access to a credit card will be able to avoid using commercial bail bond agencies altogether. This would allow individuals who are arrested on non-felony charges to post their bail using their own funds with more ease.[1]  While this provides an alternative to commercial bail bond companies, it may not be what is best for every defendant.

Before moving forward, I would like to point out that, under the proposal from the Bail Working Group, this form of payment would only be available to individuals arrested for misdemeanor conduct who are entitled to own recognizance release.  This means they should not have to pay anything unless the court makes a finding on the record that money bail should be imposed for public safety reasons or to ensure his or her appearance in court.  This post will address what an individual should consider before using a credit card, assuming that they are not eligible for own recognizance release.  If an individual does not have the access to the funds in their account and has a credit card, they would have the choice of using that credit card to pay the entire amount or using the services of a commercial bail bond company.

Some of the considerations a defendant should make before using a credit card to pay their bail are:  the interest rate of their credit card; the amount of time before they get that money back; and the fact that they may not receive the entire amount paid at the conclusion of their case.

While using a credit card may be the better option in some cases, paying 10% to a bail bondsman may be the better option for others.  After weighing these considerations, a defendant may find that using a commercial bail bond company to secure release prior to trial is a better option in some instances.  I do not address bail forfeiture (i.e. the process of losing your bail deposit when a person fails to appear in court).  I will be addressing the above-mentioned issues based on the assumption that the individual makes all of their court appearances. Continue reading “Why accepting credit cards for bail won’t help poor individuals secure pre-trial release.”


This semester, the Criminal Law and Policy class researched the way bail operates in Santa Clara County. The class discovered that individuals that have been arrested and taken to the main jail do not have access to information about own recognizance release during the booking process.  While there are advertisements for commercial bail companies, there is nothing posted in “the tank” to explain to people that they might not need to pay to be released before the conclusion of their case.  I wrote about the potential problems this could cause for people accused of a misdemeanor crime who are entitled to own recognizance release absent an express finding from the court that other terms of release should be imposed.

After learning about this problem, my colleague Ruby Renteria and I decided to create a document that would explain to individuals their potential eligibility for citation and release or own recognizance release that could be posted in the tank.  We made the sheet below available to the Bail and Release Work Group and it was circulated during their last meeting.  We hope that this marks the beginning of the process to make this sheet available to the individuals in need of this information.

Click here to view the Own Recognizance Release Information Sheet.

Paying for nothing: How misdemeanor defendants end up paying bail bond companies when they shouldn’t have to.

In 2014, the City of San Jose made 10,823 misdemeanor arrests.  Considering the population of pretrial misdemeanants in Santa Clara County is in the 300’s at any given time, there are thousands of these defendants out of custody on some form of bail.  In this post, I will begin by giving background on misdemeanor crimes in general.  I will then discuss how the bail system operates for misdemeanor defendants and where it fails them.  Finally, I conclude this post with policy recommendations that could prevent some of the harm that arises from the system as it stands now.

Misdemeanors are crimes punishable by one year or less in custody to be served at county jail.  Misdemeanors are distinguishable from felonies because the associated sentence and fines are statutorily limited, they have a less serious effect when used as a prior conviction on a person’s record, and they may not limit an individual’s job and housing prospects the way a felony conviction can.  We have distinguished misdemeanors because, as a society we have decided that these crimes warrant less severe punishment.

This isn’t to say that an individual accused of a misdemeanor isn’t facing serious consequences.  While any conviction will count as a prior, some misdemeanors are “priorable.”  That means if the defendant is convicted of that crime and subsequently accused of the same crime, the punishment is automatically increased according to statute.  For example, if a person is caught driving on a suspended license for the second time within five years, California statute mandates that the punishment increase from five days in county jail to ten days.  Additionally, a convicted defendant may be required to register with local law enforcement if the offense was drug, gang, or sex-related.  Not only do misdemeanor convictions have real legal consequences, they also have consequences for an individual’s personal and professional life.

The law also treats misdemeanors differently from felonies when it comes to bail.  While own recognizance release is available in all cases except where the defendant is accused of a capital offense, there is the presumption of own recognizance release for misdemeanor cases.  This means that the defendant need only to promise to appear at their next court appearance in order to be released prior to trial.  In order to deviate from this presumption, a judge must state on the record the reason for placing the defendant on supervised O.R. or imposing money bail.  Although this presumption exists in the law, in practice, defendants who could be entitled to own recognizance release sometimes end up posting money bail.

Continue reading “Paying for nothing: How misdemeanor defendants end up paying bail bond companies when they shouldn’t have to.”

Bail: How does it work?

Before Criminal Law and Policy Blog delves into the nuance of bail and the topics we have introduced, there are some basics to cover.  First, what is bail?  The short answer is that bail is any form of release, from own recognizance release to money bail.  Bond or commercial surety bail is that release guaranteed by a bail bond company.  Be sure to read Bail: What are we even talking about? for a more thorough explanation of this term of art and how it differs from the term bond.  This post will explain the process of administering bail.  Once an individual is arrested, when and how can he or she be released on bail?

What follows is an explanation of the different stages at which bail is “assessed” after a person is arrested.  I use quotations because the entity or individual doing the “assessing” doesn’t necessarily use discretion, and may merely apply a formula.  Essentially, a person, from here on out we will refer to him or her as the defendant, can be released prior to trial at these different points in the post-arrest process.  A better understanding of this process will help us gain insight into the sources of pretrial population pressure. Continue reading “Bail: How does it work?”

The Misdemeanor Pretrial Population: Who is in Custody and Why?

At the time of writing this blog post, there are 304 men and 90 women in jail in Santa Clara County accused of committing misdemeanors. Even though these men and women have not yet been convicted of a crime, the average time they have spent in jail is 33 days. Those accused of a misdemeanor are entitled to release on his or her own recognizance absent an express finding from the court. In other words, unless a court finds that the individual is a danger to public safety or a flight risk, all he or she needs to do is promise to appear for their next hearing. So why do these 394 individuals remain in custody? My writing for Criminal Law and Policy blog will focus on defendants accused of a misdemeanor crime and will attempt to answer the following questions: who remains in custody and why are they there?

Additionally, I will be writing about alternatives to commercial bail, specifically community bail funds. Most likely, there are people in jail in Santa Clara County accused of misdemeanors who would be released if they could afford to pay 10% of the bail amount to a bail bondsmen. This is fundamentally unfair and potentially unconstitutional. Although community bail funds have been described as a Band-Aid for a much larger problem, if the system continues to utilize money bail for pre-trial release, the Band-Aid is needed.

My name is Erin Callahan and I am third year law student at Santa Clara University and a candidate for a Public Interest and Social Justice Certificate. Last year, I wrote for the Drug Law and Policy Blog about barriers to entry for communities of color in the burgeoning recreational marijuana industry. I have worked with indigent defendants for the past two years at both the Santa Clara County Office of the Public Defender and the Northern California Innocence Project. Most recently, I worked with misdemeanor clients pre-trial and saw firsthand how pending charges can cause someone to lose their job and interfere with their home life. I am excited to work on bail reform because I believe there is a way to achieve equity and fairness, while promoting public safety and decreasing recidivism.