The Problem of Wicked Wednesday

From the beginning of our exploration of bail policy in Santa Clara County, the question of Wicked Wednesday has loomed large. Wednesday is by far the heaviest day for arraignments in the county, which is why it has earned the nickname. The reason for this requires some explanation.

Arraignment is typically the first time a defendant appears in court. At this time, he or she will be formally charged and may enter a plea. Bail will also be set or modified. California Penal Code section 825 requires that arraignment take place within 48 hours of arrest. There is a catch, however. That 48-hour window excludes Sundays and court holidays. Therefore, if an individual is arrested on a Friday or Saturday, the clock does not begin ticking until Monday, meaning that he won’t appear for arraignment until the following Wednesday.

A public defender previously assigned to arraignments estimated that she routinely handled twice as many cases on Wednesdays as she did on any other day of the week. This makes sense when you consider that people arrested on Friday, Saturday and Sunday will all be arraigned on Wednesday.

 

The Question of Probable Cause

The term “probable cause” is used a number of times throughout criminal cases. For instance, when a person is arrested without a warrant, the arresting officer must have probable cause for the arrest to have taken place. This means the officer must have had a reasonable belief that the person was engaging in criminal activity. Probable cause can be based on the officer’s observation of activity that violates some law, such as driving a vehicle with defective equipment or failing to stop at a stop sign. It can also be based on the officer’s observation of suspicious behavior. A police officer is authorized to make a probable cause determination at the time of arrest.

Probable cause is also a factor in California felony cases that go to trial. Before the trial begins, a preliminary hearing is held. This is sometimes called a probable cause hearing. At this hearing, both the District Attorney and defense counsel are able to present evidence, call witnesses and question them before the judge. The judge will decide based on the evidence presented whether there is probable cause to proceed with a trial on the charges. Because some of the charges may be modified or dropped, a new criminal complaint called an information is filed by the prosecutor. The defendant is then arraigned for the second time, this time on the charges in the information. After that, the trial will be held. Continue reading “The Problem of Wicked Wednesday”

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Excessive Bail, Equal Protection, and the Plight of the Homeless

The hardships imposed by the cash bail system fall most heavily on the poor. It is difficult for poor people to pay bail or even raise the 10% that is a standard deposit for bail bond companies. This can result in an individual remaining in jail until their court date, or even until their case is resolved or goes to trial. Depending on the severity of the charges, this can take months or even a year or more. Time spent in custody can cause these people to miss work and possibly lose their job. They can potentially lose more than that. The cost of living is high in Santa Clara County and many people are only a paycheck or two away from losing their homes.

For those who are homeless, additional layers of difficulty arise. In my research for this blog post, I was unable to find statistics concerning the arrest and incarceration of homeless individuals specifically but I was able to gain insight about the unique challenges they face from legal professionals, case law, and homeless individuals themselves.

First, it is helpful to define what we mean by “homeless.” The U.S. Department of Housing and Urban Development (HUD) requires all communities that receive federal funds for issues relating to homelessness to compile biennial reports, which are then integrated into a summary report produced by HUD. All these reports use the federal definition of homelessness (PDF, page 14). This definition includes those people living in transitional housing or shelters, or those whose primary nighttime residence is a public or private place not ordinarily used as such.

According to the 2015 HUD report, San Jose had the ninth-highest population of homeless of all reporting cities in the nation (PDF, page 15). The city had the highest percentage of unsheltered homeless at 70.6% (PDF, page 16). This is a substantial population and because of the way homeless individuals are marginalized in our society, they frequently run afoul of the justice system. For instance, the homeless are often arrested or cited for so-called “quality of life” crimes. These include crimes such as vagrancy, littering and public urination to name only a few. They are the types of crimes that the homeless may commit just by existing.

Continue reading “Excessive Bail, Equal Protection, and the Plight of the Homeless”

Jail Classification and How it Relates to Bail

Statistics show that the majority of county jail inmates are individuals who are awaiting trial. Understanding how people are sorted, managed and classified within the jail system is an important step in determining why this is so. Furthermore, important bail decisions and determination are often made at the time of booking and classification. An explanation of the process seems a necessary starting point to further exploration into these subjects.

So imagine you have just been arrested by the San Jose police for some crime. For the sake of this hypothetical, let’s say you stole a garden gnome worth $145 from your old English teacher’s yard. When the police stop you, they catch you red-handed with the gnome. You are handcuffed and put into a police car, and you’re driven to the Main Jail where you go down a sinister-looking ramp to what is known as Lower Booking.

Continue reading “Jail Classification and How it Relates to Bail”

County Jail Populations: What does it all mean?

Determining how bail procedure and policy can be reformed requires an understanding of how criminal defendants are affected by the current bail system. County jails are one place to start. These institutions house both inmates who have been sentenced for a crime and are serving time, and those who have not yet been through court proceedings and remain unsentenced. All inmates entering the jail system are classified in terms of risk level. This classification of high, medium or low risk determines how the inmate is housed. I plan to explore how the classification process works, what factors are examined, how they are weighted and how the final classification is arrived at. Additionally, I hope to determine the average number of inmates of each risk level housed on a daily basis, and how many days these individuals spend in custody prior to sentencing. The next step is to determine whether the identified low-risk unsentenced individuals are in custody because they were denied bail, because they cannot afford bail, or because they choose not to pay bail. The answers to these questions may help us find ways to reform the bail system in a way that allows more unsentenced people to remain out of custody while still ensuring public safety.

My name is Marjorie Sheldon and I am a third-year student at Santa Clara University School of Law. My focus is on criminal defense and working for fairness for all in the justice system. I have served as an intern at the Santa Clara County Office of the Public Defender for the past year and a half and have also volunteered with and taken the class offered by the Northern California Innocence Project. My work has brought me into contact with many defendants who are poorly served by the bail system. I hope this project can make bail more equitable for those who must navigate the court system.