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.
In an earlier post, I detailed the California Supreme Court case, Van Atta v. Scott, which “changed the game” for all in-custody defendants seeking pretrial release on their own recognizance. To recap, the court held that keeping a defendant in custody before trial is an infringement on individual liberty under the 14th Amendment. Courts may not violate someone’s liberty interest without due process of law. Due process in this case requires the prosecution to prove that a defendant should be held pretrial, rather than requiring a defendant to prove to the court that he or she should be released. By placing a burden on the prosecutors, I assumed the Van Atta decision would make it easier for defendants to be released on OR. The way the court described the harm of pretrial detention gave the impression that prosecutors would face a difficult task in keeping defendants detained pretrial. Turns out that’s not the case.
Since the ruling in Van Atta, the number of defendants released on OR has actually gone down. The Bureau of Justice Statistics conducted a study of the 75 most populous counties in the United States, twelve of which were in California. The study showed that from 1990 through 1994, release on OR accounted for roughly 41% of all pretrial releases, whereas surety bond accounted for only 24% of releases. However, in 2002 through 2004, surety bond releases increased to 41% of all releases, while the number of defendants released on OR decreased to just 23%. (pdf pg. 2). In addition, from 2000 to 2009, California’s largest urban counties relied on pretrial detention more than urban counties in other states. (Figure 3). These statistics suggest that Van Atta has not really had any meaningful impact on defendants requesting release on OR.
The infrequency of OR release lead me to question my assumption that Van Atta made it more difficult to detain defendants pretrial. The initial reaction is to assume that judges are not holding prosecutors to their standard of proof, and thus ignoring the California Supreme Court’s ruling. However, upon further review, that answer is too simple. The reason Van Atta has not made it easier for defendants to be released on OR is two-fold. First, the decision itself does not provide trial court judges with sufficient guidance about how to implement its ruling and change the OR determination process. Second, and perhaps most important, the rules in place that govern pretrial detention and release procedures make it easy for prosecutors to meet their burden.
Like many appellate level decisions, Van Atta leaves California trial courts with a stated principle of law, but without much detail about how that principle should be implemented. The principle itself is simple enough. The People now bear the burden of proving why a defendant should not be released on OR pretrial. However, the court does not explain what standard the People are required to meet. It does not say whether it is by a preponderance of the evidence, clear and convincing evidence, or evidence beyond a reasonable doubt. Prosecutors are simply required to prove that a defendant should be denied OR. Imposing a burden without clearly defining the standard by which it is supposed to be applied makes the burden relatively meaningless. It provides no guidance to either prosecutors or judges.
Another issue with the Van Atta decision is that it creates a rule of law that, in practice, contradicts the California Constitution. Article 1 Section 12 of the California Constitution states that a person “shall be released on bail by sufficient sureties.” In contrast, the same section states, “a person may be released” on OR in the court’s discretion. The distinction between may and shall is important because it establishes that one is required, while the other is permissive. Every defendant, except for a few limited exceptions, must receive surety bail. On the other hand, no one is entitled to release on OR. However, under Van Atta’s rationale, courts no longer have discretion over the decision to grant OR release. They must do so if the prosecutor is unable to prove otherwise.
For example, let’s assume that a defendant is arraigned on a non-capital felony offense. The court is required to set bail for the defendant. After arraignment, the defendant makes a motion requesting release on OR. If the prosecutor offers no argument in opposition to the motion, then under Van Atta the state has not met its burden of proof, and the court would have to release the defendant. Therefore, Van Atta creates a situation in which defendants receive a presumptive right to OR as soon as they request it. It effectively takes away the discretion of courts under the California Constitution. What’s left is an unworkable rule that’s difficult to implement. How does a court place a burden of proof on prosecutors without creating a presumptive right for defendants?
Perhaps the answer is that courts may still refuse to grant OR release sua sponte (i.e. within their discretion) even if a prosecutor does not meet the burden of proof. That certainly comports with the discretionary language of Article I § 12. But of course, that doesn’t fit with Van Atta. According to the court, it was unconstitutional for San Francisco Superior Court judges to require defendants to prove that they should be released on OR. However, if judges may still deny OR release without a prosecutor making an argument, then nothing has changed. We are still left with the problem of defendants fighting to convince judges that they deserve to be released.
Even if we assume that Van Atta did create a workable rule that imposes a burden on the People to prove that a defendant should be denied OR, the rules of the game make it easy for prosecutors to meet that burden. When the Court decided Van Atta, the defendant’s likelihood of appearing at future court proceedings was the only determination courts had to make when deciding whether or not to grant OR. Public safety was not a factor when Van Atta was decided, but now it is the primary factor.
It follows that if the prosecution bore the burden of proving a defendant’s likelihood of appearance, the prosecutor now also bears the burden of proving that a defendant is a risk to public safety. Proving that risk is not terribly difficult when there is apparently a rule in California Superior Courts that a judge must accept as true all allegations filed in a criminal complaint. I say “apparently,” because the rule actually does not exist in any statute, regulation, or local rule. But I’ve heard prosecutors and judges reference it in open court. Supposedly it originates from an 1879 California Supreme Court decision, Ex Parte Duncan. In that case, the defendant was in custody and he petitioned the court to reduce his bail. The court denied the request, stating that “we must assume in this proceeding that the petitioner is guilty of . . . the felonies of which he is indicted.” The words “in this proceeding” are crucial because it means that the court was limiting the presumption of guilt to situations in which a grand jury had already decided that there was enough evidence to charge the defendant with a crime. However, the rule has expanded over time, and many judges now presume guilt at all stages of the criminal justice system for purposes of bail. The result is an incredibly powerful tool for prosecutors.
The prosecutor can effectively argue that a given defendant is a threat to the public simply by virtue of filing charges of criminal behavior that paint the individual as a threat. The evidence doesn’t have to be weighed, and judges don’t have to consider any mitigating factors absent from the complaint. The ability of a judge to presume that a defendant is guilty for purposes of setting bail makes the prosecutor’s job of fulfilling his or her burden of proof substantially easier.
I learned through watching felony arraignment and bail motion proceedings in Santa Clara County that Van Atta has not really made it a challenge for prosecutors to successfully oppose a motion for OR. In over 70 arraignments and pretrial bail motion proceedings of in-custody felony defendants I saw judges grant OR, or supervised OR, only five times. In one case, the prosecutor was able to convince the judge to deny OR because the defendant had allegedly told his victim, “I am going to f*** kill you.” The judge said that she must believe that the defendant did make the statement, and denied OR on the basis that defendant was a threat to public safety. The entire argument lasted three minutes. This was the norm during most motions for OR release and it was not the type of adversarial proceeding I envisioned after reading Van Atta.
Although I viewed Van Atta v. Scott as a landmark decision for defendants, it really hasn’t had a meaningful impact on the amount of defendants released on OR. It may be easy to blame the judges and prosecutors for ignoring the decision and not adhering to precedent. However, I think it is more nuanced than that. Even if the parties within the criminal justice system believe that they are adhering to Van Atta, our bail determination procedures render the decision toothless. It is clear that if anyone is serious about addressing issues regarding bail and pretrial detention, meaningful statutory reform is necessary. Litigation, even at the highest level, may not be enough.
 This is a very unlikely scenario, but illustrative nonetheless.
If you were arrested and accused of burglary, how much do you think your freedom would be worth? $10,000 $20,000? $50,000? You might be surprised to know that the answer depends entirely on where you committed the crime.
Under California law, judges in each county annually adopt a master bail schedule that fixes the bail amount for each crime in the penal code. It serves as the default amount for anyone arrested for a bailable offense. Later on, a judge or magistrate may choose to deviate from the scheduled amount pursuant to considerations set forth in Cal. Pen. Code 1275, but until that time the schedule serves as the de facto amount.
In theory, a master bail schedule doesn’t appear to be a bad idea. It promotes consistent decision making, which is an important goal of our criminal justice system. It also ensures that only neutral judges and magistrates are entrusted to exercise discretion when setting bail. Imagine entrusting an arresting officer with the power to determine the bail amount for someone who resisted arrest. It is not hard to see how that would be bad for the defendant.
Although a master schedule might be a good idea in theory, the way in which it is implemented in California is just plain odd. The penal code states that the only thing judges are allowed to consider when determining the county bail schedule each year is the nature of the offense: in other words, how serious or heinous the crime is. (pdf pg. 15). For example, making a criminal threat in violation of California Penal Code §422 may carry a bail amount as low as $5,000 in some counties, and as high as $150,000. (pdf. pg 17). The natural follow-up question is what makes an offense more serious in one county than another?
A hypothetical may be helpful to illustrate this point further: Imagine you are standing at the county line dividing Contra Costa and Alameda Counties. You are standing in Contra Costa, and across from you is Joe Blow who is standing in Alameda. Joe Blow shouts “I am going to kill you!” which is a criminal threat under the penal code. If Joe Blow is arrested by officers from Contra Costa, his bail is $25,000. (pdf pg 7). But if he is arrested by officers in Alameda, his bail is $50,000 for the exact same crime. (pdf pg. 11). Joe Blow is simply a victim of geography.
One could make the argument that counties should have the freedom to decide for themselves how serious a given offense is. Take drug possession, for example. A county with a more liberal population may not care as much about simple drug possession, whereas a more conservative county may view drug possession more harshly. Under that scenario, judges may adopt disparate bail schedules that reflect the sentiment of the community at large. This wouldn’t be any different than law enforcement agencies setting priorities for which crimes they will enforce in the community they serve. Since our laws are ultimately designed to reflect the will of the people, communities should have the right to determine what sort of community they what to live in.
That argument would carry greater weight if we didn’t already have a state legislature that is responsible for criminal justice legislation. The California Penal Code is voted on and adopted statewide, with no discrepancy between counties. Although judges may exercise discretion when sentencing, there are limits to any criminal punishment that are also set on a state-wide basis, not county to county. If crimes and their penalties are established statewide, why should bail be any different?
Proponents of county bail schedules may also argue that the schedule is merely a starting point. Any disparity in schedules is not actually harmful because judges have the discretion to tailor the amount to the individual at arraignment. In other words, the system is designed to be self-correcting. However, it appears from my personal observations that it is common practice for judges not to deviate from the amount set under the schedule. I have observed 54 arraignment hearings in Santa Clara County and the judge stuck with the scheduled bail amount in roughly 76% percent of the cases. When it came time to set bail, the judge would turn to the prosecutor and ask what the scheduled amount was, and then simply set bail at that amount. Granted, this is a limited sample from one county in California. I am not claiming that this is in anyway proves that this is common practice amongst judges; however, it does give some indication that judges are defaulting to the scheduled bail amount instead of tailoring their decisions to the individual.
Under the current system, a defendant’s bail amount depends entirely upon the county in which the person is arrested. Currently, Equal Justice Under the Law is challenging the use of generic bail schedules in federal court on the grounds that they violate equal protection. We may not all agree with doing away with a bail schedule completely; however, we should all get behind the idea of eliminating the disparity amongst county bail schedules. A bail schedule should be passed by a government entity at the state level – either the legislature or Supreme Court. In fact, legislation was proposed back in 2013 that would have established a statewide bail calendar; however, it died in Senate committee despite unanimous support in the Assembly. This type of legislation ought to be revisited because it is a step forward toward consistency within our criminal justice system.
At first glance, a prosecutor does not appear to play much of a role in the bail and pretrial release procedures. Under California law, everyone is entitled to monetary bail that is set according to a master schedule. That schedule is created annually by judges in each individual county. The decision to increase or decrease that amount, or to release a defendant on his or her own recognizance (OR) prior to trial, is entirely within the discretion of the trial judge. It used to be the case that a judge could set a bail amount that far exceeded what an individual could pay as well as deny that individual’s request to be released on OR without the prosecution so much as lifting a finger. That all changed with the 1980 California Supreme Court decision, Van Atta v. Scott. Continue reading “The Prosecutor’s Role in Pretrial Release: An Analysis of Van Atta v. Scott”
My name is Clay Fuller.* I am a 3L at Santa Clara University School of Law and a native Californian. I hope one day to work as a criminal prosecutor in this state. I want to ensure that our state’s criminal justice system serves the necessary role of holding individuals accountable, while also not unnecessarily or arbitrarily punishing anyone within it. I believe it is important that anyone accused of a crime is treated constitutionally, ethically and fairly, and that our system of bail reflects that standard.
My primary area of focus is on the role of the prosecutor in the bail system. More specifically, whether or not judges hold prosecutors to their standard of proof set forth by the California Supreme Court in Van Atta v. Scott. In that case, the court held that the state must put forth evidence to show why an indigent defendant should be denied release on his or her own recognizance. I will explain the California Supreme Court’s decision and look to see how courts actually implement the ruling. Similarly, I will take a critical look at the prosecutor’s role in setting the money-bail amount. My initial understanding is that bail amounts are determined primarily by the county’s bail schedule as well as an individualized pre-trial report. The presumption in California is in favor of monetary bail. My concern is that this does not satisfy due process. Instead, California should adopt a statute similar to one recently passed in New Jersey that places the burden of proof entirely on the state in order to set a monetary bond or deny release on a defendant’s own recognizance. The role of the state is important when examining the structure of a bail system because under the current model, bail is either a deprivation of property, or a deprivation of liberty. If the state is going to deprive someone of either, it must provide compelling reasons for doing so.
*For professional reasons I have chosen to write this blog under a pseudonym. This name was randomly generated based on common names within the United States Census Bureau database. Any similarity to an actual person is purely coincidental.