Rewriting Inequity: Policy Recommendations for CA PC 1305

So far this semester, I have written about the text of California Penal Code Section 1305. Most of that time has been taken up with discussing the problems with bail forfeiture and exoneration that arise from the way the law is written and implemented. In this final installment, I will address two problems I have raised over the last two posts: (1) affordability of bail and the bail schedule; and (2) amending PC 1305 so that it does not favor bail bond companies. By way of solutions to those problems, I will offer some policy recommendations for the California bail framework as we move into a time where the state-level bail system is getting some much-needed attention from criminal justice reformers.

Bail has come to mean a lot of different things. However, at its base, bail is simply the mechanism by which we attempt to guarantee the defendant comes to his or her court dates, while, at the same time, maximizing public safety and minimizing restraints on a defendant’s liberty. Since money bail is not working toward these intended purposes, it is time we get rid of it. There are other forms of pretrial release that do a much better job of getting the defendant to come to court when he or she is supposed to, and enable real criminal justice professionals to keep track of the defendant.

In general, the best way to fix the bail system in California is to abolish money bail in favor of a combination of preventive detention and pretrial release with supervision (first paragraph of page) similar to the structures in place in Washington, D.C. and New Jersey. However, that would require a complete overhaul of judges, jails, and a thriving quasi-insurance industry (bail bond companies). Since that is both unlikely to take root quickly and outside of the topics I have addressed so far, this post will focus on possible policy solutions and recommendations for PC 1305 specifically.

No One Can Afford the Better Option: Cash Bail and the Bail Schedule

Cash bail – as compared to commercial surety bail, or bail bonds – is always reserved as an option for defendants, but it is rarely taken. Few defendants can afford to deposit the full bail amount with the court, because the scheduled bail amounts are so high. This is especially true in the case of individuals who are accused of misdemeanors, where bail is most often set according to the bail schedule, usually between $1,000 and $10,000.

If the system is meant to ensure the defendant comes to trial – which it is – then the amounts should be high enough to matter, but should still take into account (1) the defendant’s ability to pay, along with (2) potential risks to the public’s safety if that person gets out. With those as the two chief considerations in setting bail, judges can tailor bail amounts to individual defendants enough to be effective, while not inflicting prison time upon them for their lack of assets. Conversely, the rich will no longer have access to freedom while the poor do not. Today, so long as the person has not been charged with a capital offense, for which there would be no bail, rich defendants can get out of jail almost immediately by buying a bail bond, regardless of how dangerous they are to the public.

As the Santa Clara County website says, “[t]he Bail Schedule is the presumptive bail in many, but not all statutory offenses.” Judges are permitted to depart from the bail schedule but almost never do, since they really have no reason to do so. It’s already been agreed to by a majority of the judges in the county, so it comes prepared with a stamp of approval. However, judges can and should take advantage of that discretion in setting bail to alleviate foundational problems ranging from jail overcrowding to the simple fact that pretrial detention only affects people negatively (PDF page 3-4), especially low-risk defendants. That is, keeping people in jail, discerning which defendants are not a public safety risk and will most likely come back for their court dates can be, and has been, accurately done. At the very least, if money bail has to continue being part of our criminal justice system, then defendants that we can safely let out should be able to get out of jail.

Get Rid of the Bail Schedule

Getting rid of the Bail Schedule altogether is the most efficient way to discern which defendants are either flight risks or dangerous, so that judges have to make individualized determinations, and will hopefully choose to take advantage of risk assessment tools. One logical counterargument to that point is that judges just don’t have the time to consider each defendant’s unique circumstances, so the Bail Schedule is simply a creature of convenience that helps the criminal justice system run smoothly. The obvious response is that we are dealing with a person’s freedom, as well as their future. The Bail Schedule lets judges use it as a default, since it is the “presumptive bail,” but the standard amounts are too high for many defendants. Thus, adherence to the Bail Schedule results in unnecessary pretrial detention. Any jail time is bad, but unnecessary jail time is considerably worse. As an Arnold Foundation study found, “low-risk defendants who were detained pretrial for more than 24 hours were more likely to commit new crimes not only while their cases are pending, but also years later” (PDF, page 4: “The Hidden Costs of Pretrial Detention”). Clearly, we hope that criminal justice is both making society safer and better generally – part of which is lowering crime.

If jail time is causing an increase in crime, then the criminal justice system – legislators, judges, and prosecutors – should concentrate on alternatives to jail time. As an added benefit, jails will become less crowded and, hopefully, get back on track by inflicting pretrial detention only on the people who cannot be freed safely. Additionally, the county will save money. It costs the county, and therefore taxpayers, $204 per day for a single inmate (PDF, page 22) to stay in Santa Clara’s Main Jail pretrial. The cost of pretrial supervision – for those defendants who require supervision – is estimated at $15 per day (PDF, page 22). Some defendants don’t even need to be supervised.

If the argument for the Bail Schedule is convenience, and replacing that convenience for a different kind of convenience could bring about all of the positive effects above, then it seems like a worthwhile trade. Now I’ll turn to a discussion of how to remedy some of the problems with PC 1305 from the legislative side.

Rewriting PC 1305

Throughout my posts in the last couple of months, and most of the other posts on this blog, there are a few common threads, one of which is: bail bond companies are getting off too easy. One of the many reasons that is true is that PC 1305 is written in a way that favors bail bond companies, so the entire process – from getting a defendant out of jail to when they go to trial, or don’t – is written to give bail bond companies as many chances as possible to make money and dodge liability.

Stop Construing PC 1305 “in Favor of the Surety”

One of the most glaring problems with the way PC 1305 functions is that courts are actually required to construe the law in bail bond companies’ favor. As far back as 1975, in a case called People v. Wilshire Insurance Company, and as recently as 2015, in People v. United States Fire Insurance Company, courts have insisted on statements such as “[t]he Penal Code sections governing forfeiture of bail bonds must be strictly construed in favor of the surety to avoid the harsh results of forfeiture.” In People v. US Fire Insurance Company, the court explained further that, “strict construction of bail forfeiture statutes compels the court to protect the surety.” Even if the law were not written in favor of bail bond companies, it would still be treated as if it was. Why?

One explanation is that “the law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail.” People v. American Contractors Indemnity Co. However, bail bond companies are not traditional companies – they are little insurance companies who are guarded by huge insurance companies, which end up playing a critical role in the criminal justice system, in pursuit of profit. Because judges often – if not always – rely on the Bail Schedule, bail agents end up making the determination of which defendants get out of jail and which defendants stay in custody without regard for public safety. Their motivation is profit, so the defendants who get out are the ones who can pay for it, and who have high enough bail set to be profitable.

Bail bond companies and their agents should have higher risk of forfeiting their potential monetary gain, because they are responsible for both keeping the public safe by not letting out dangerous criminals, and getting those out who should be out, and then ensuring they go to trial. The stakes are much higher than for, say, car insurance, where the risk and reward are purely financial. In the bail context, the bond companies’ risks are financial, but the same risk for an individual is his or her liberty, which should hold a much higher price.

185 Days is Too Long

When a defendant fails to appear, the bond company has 185 days to find them and bring them back before the bond company loses any money. They can also attempt to extend that period by 180 days if they file a motion with the court pursuant to 1305.4. Bail bond companies exist to get people out of jail pretrial, with the promise to bring them back for trial. If any other person (or entity) in any other kind of job failed to do the single thing they were supposed to, it would be crazy to give them either 6 months or a year to finish the task they were supposed to have done in the first place, and then pay them for it.

Bail bond companies need to keep better track of defendants so that they don’t fail to appear. If a bonded defendant does fail to appear, the bail bond company should not still make money. Thus, the bond should be actually forfeited when the defendant fails to appear. Or, at least, whatever the bond company got from the defendant should go to the court. To bring it full circle, allowing defendants to give a deposit to the court in cash, the same way they would pay a bail bondsman, would solve this whole problem. Then the defendant has a reason to come to court, and no one makes money for being terrible at his or her job.

Rearrest Should Not Equal Exoneration

When a defendant is out on bond and is rearrested, the bond is exonerated and the surety is freed of all obligations. Bail bond companies purport to protect public safety. However, almost 30% of people in Santa Clara County that bail bondsmen bail out of jail are rearrested. When a bail bond company bails out a defendant who is likely to commit another crime, it endangers the public. Thus, when a defendant commits a crime while out on bond, as more than a quarter of Santa Clara defendants post bond do, the bail bond company should forfeit either the entire bond or at least the portion they charged the defendant.

Conclusion:

There are many problems with PC 1305, but there are also many open avenues for solutions. Reform can come from judges by using discretion in setting bail, so that defendants get individualized assessments, even if it means that they see fewer defendants per day. The legislature should carefully consider the effects of PC 1305 according to the above critiques, to make sure the statute is bringing about its intention; not just benefitting huge companies making a safe investment in someone’s freedom, or incarceration. Finally, prosecutors can mitigate some of the damage 1305 does by not asking for higher bail or defaulting to the bail schedule in cases where ability to pay is a factor, and by giving more credence to tools-based risk assessments used by Pretrial Services.

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Bail Exoneration: the Rest of PC 1305

My last post explained how the complicated process called bail forfeiture works in California. In California, that process is governed by the first few subsections of Penal Code Section 1305 (PC 1305). The rest of the law deals with the situations where, once bail is forfeited, bail is then exonerated.

After a defendant’s bail is set and he or she misses a court date, the bail is forfeited. If the court declares that bail is forfeited, the defendant’s money goes to the county after a long period during which it might still be exonerated (more on this below). If bail is exonerated, then the “surety or depositor shall be released of all obligations under bond,” i.e., the bondsman or defendant does not have to pay.

There are a lot of ways that, once bail has been forfeited, it will then be exonerated. In fact, most of the law is written detailing those scenarios. That is especially important because few defendants deposit their own money with the court, i.e., pay cash bond, so defendants rarely reap the benefit that so much of PC 1305 tries meticulously to preserve. In this post, I explain bail exoneration via PC 1305 and illustrate the ways that the law is written to favor exoneration, which almost by definition favors bail bond companies. Continue reading “Bail Exoneration: the Rest of PC 1305”

Bail Forfeiture 101

When a defendant fails to appear for a court date, the judge is required under California Penal Code Section 1305 (PC 1305) to declare their bail forfeited. Bail forfeiture is an extremely complicated process that works differently for individuals than it does for commercial bail bond companies. This post is going to focus on how the process works (1) for individuals, and (2) for commercial surety bail companies, also known as bail bond companies. I want to highlight how oppressive the system is on defendants and how few opportunities counties have to collect any money from bail bond companies as a result of the way the law is written.

How it Works for Individuals

When a person is arrested and brought to jail, he or she can make bail, which means they have an opportunity to pay money either to the court or to a bail bond company in exchange for freedom.

Judges set bail according to the County Bail Schedule (link is a PDF of Santa Clara County’s Bail Schedule), usually in a defendant’s first court appearance. For example, if a defendant is arrested for battery, a violation of CA Penal Code Section 242, they are guilty of a misdemeanor and minimum bail is to be set at $5,000.

Cash Bond:

Most people don’t carry $5,000 on hand, or even have it waiting in a checking account. If they do, they can deposit that money (or property equivalent) with the court and promise to come back to court for their hearing. If they don’t show up for their hearing, they lose the money immediately – it is “forfeited.” This is called “cash bond” or sometimes “cash bail.” According to officials in Santa Clara, it happens rarely because so few people have the money to take this option.

Bail Bonds:

The other option that an individual has is to pay a bail bond company a percentage of their total bail amount, usually 10%. In return, the bail bond company promises to pay the remainder of the bond if the individual does not appear in court.

He or she can give the bail bond company either cash or rights to property. This is not always the defendant’s property; it can also be a family member’s. In fact, bail bond companies and their representatives go through a lot of trouble to get co-signers on the bond, in case the defendant “skips bail,” i.e., doesn’t come to court.

Whether the defendant appears in court or not, he or she loses the money paid to a bail bondsman because the individual’s initial payment for the bond is non-refundable. Thus, the defendant has both lost the money he or she paid to the bond company, and has no incentive to show up to court, precisely because the money is already gone. (For a more detailed discussion of the differences between cash bail and bail bonds, see the Johnny Cash / James Bond hypo in “Bail and Public Safety in Santa Clara County.”)

How it Works for Bail Bond Companies

When all of the steps above occur, and the defendant misses a court date, meaning bail is forfeited, it works differently for the bail bond companies. The company that sold the bond is responsible for the other 90% of the bail amount, which means they either pay out or they sell someone’s house (or other assets) in order to make up the cost. Bail bond companies are not required under CP 1305 to initially give the court anything of their own as collateral as a condition of the defendant’s release, just the “undertaking of bail” which is just a promissory note – i.e., a promise.

Meanwhile, the bail bond company’s agents may be out looking for the defendant, or may not be. Santa Clara officials have said that people most often miss court dates because they were asleep or drunk, and those people often turn themselves in. Other times, the bail bond company waits for the person to be rearrested, which happens strikingly often: 29.4% of cases – more than one out of four.

In either of those cases, the bail bond company is released of all obligations and the bond is exonerated under PC 1305(c)(1), meaning that the bail bond companies owe no money to anyone. (Exoneration is the topic of my next post.) Further, the bail bond company will be notified of the order exonerating bond and will be able to get first crack at selling the defendant a new, more expensive bond in order for the defendant to be re-released (the charges stack up, which means higher bail). The new bond is for the second crime, and the defendant is now free again to go out and commit a third crime. The process is made even easier for bail companies because under PC 1305(c)(1), the companies have 180 days to track down the defendant or wait for him or her to be rearrested, in this county or another (PC 1305(i)).

If this seems confusing, that is because it is. The law is written that way. Simply put, bail bond companies are highly incentivized to go after their clients who fail to appear, but rarely need to. On top of that, the money that the defendant paid for his or her freedom evaporated as soon as he or she walked out of jail. That is, as long as that price was paid in actual money, not a house or part of one. Unfortunately, this is just one way that bail bond companies hurt low-income families while offering a negligible criminal justice benefit. The way that bail is forfeited is largely procedural, which adds to the confusion. The beginning of PC 1305, the part that includes forfeiture, is below with slight changes and explanations.

When and How Bail is Forfeited:

There are only a few specific instances where bail has to be surrendered.

Bail is forfeited if a defendant misses:

(1) Arraignment, when the defendant is formally charged;

(2) Trial;

(3) Judgment, where the judge reads the punishment(s) for a crime if the defendant is found guilty;

(4) “Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required,” which is essentially, if the judge says that the accused has to be there for something; and, finally,

(5) “Surrender[ing] himself or herself in execution of the judgment after appeal,” i.e., when the defendant is sentenced and fined, taken back to jail, or taken to prison. That is also when any conditions the judge imposes are announced.

Those eight lines of text, subsections (a)(1)-(5), are the only provisions in a law that runs about two pages in 10-point font, that explain when a forfeiture can happen and the bail bond company might be exposed to liability as a result. The rest of Section 1305 details the impressively extensive scenarios where a bail bond company can escape liability, which will be the subject of my next, no-doubt much longer post.

Bail Forfeiture in California: How it Works and Why it has Become so Complicated

The American for-profit bail industry has produced a litany of problematic policies and results over its lifespan. The industry has been able to take advantage of extremely complicated processes to further its primary objective – namely, profit. Reform efforts are taking hold around the United States, in New Jersey and Kentucky, for example. Amidst these changes, it is important to see the inner workings of the industry. Specifically, I will be looking at how difficult it has become for California’s courts to recover forfeited money bail from bail bond companies. I hope this work will facilitate policy oriented toward defendants who cannot afford to pay their way out of jail, not the for-profit surety bail industry.

My name is Julian LaCasse; I am a JD candidate at Santa Clara Law. Last semester, I wrote for the Drug Law and Policy Blog. I majored in poetry writing and philosophy at Gonzaga University. I like to spend my time surfing, eating, reading, and cooking, not necessarily in that order.