The Price of Avoiding Incarceration

In my previous posts, I have discussed the general stages of the justice system, the fines and fees associated with the pretrial stage as well as the fines and fees associated with being in custody. To complete the discussion regarding the fines and fees associated with the life cycle of a criminal defendant’s journey through the justice system, I will be focusing on how money affects a person once they have been sentenced and are eligible for diversion programs. This post will illustrate how money is typically a factor in determining whether a person serves their punishment in out-of-custody diversion programs and the ramifications that this practice has.

Alternative sentencing is the general umbrella term that is used for different avenues of punishment rather than incarceration. The goal of alternative sentencing is to identify and use effective sanctions that address an offender’s underlying problem in efforts to advance public safety and the chances of reoffending. Alternative sentencing is similar to deferred entry of judgment pursuant to California Penal Code sections 1000.-1000.6. Deferred entry of judgment for adults is a special drug and alcohol education program that; offenders who commit certain drug crimes can have their charges dismissed upon completion of the program.

Santa Clara County frequently utilizes both the Sentencing Alternative Program, Inc. and the Sheriff Weekend Work Program when allowing individuals to serve alternative sentences in lieu of jail time. Both programs highlight that the programs benefit the community, the offender, and the state since the offenders pay to participate. Programs like these can be incredibly beneficial for an offender since they allow time to be served on the weekends or nights, allowing the participants the ability to keep their jobs, homes, and maintain family ties. However, these benefits come at cost. For example, the Sentencing Alternative Program charges, along with various miscellaneous fees, a sliding fee ranging from $35-$250 based on the number of hours an offender is assigned to complete. The cost to participate in the Sherriff’s Work Program is not publically available, however, their site does relay that the program incurs no cost to Santa Clara Citizens or the Department of Corrections as participants pay a fee.

The imposition of these fees puts indigent and poor defendants at a disadvantage: even if they are eligible for the program on the basis of their sentences, they will not be able to participate because of inability to pay. This disadvantage does not fall solely on those who have no money, but also those who are struggling to feed, clothe, and house themselves (and their families) while working multiple jobs. The inability to serve alternate sentences can have detrimental effects on these populations as jail time would likely cause them to lose their jobs and create difficulty securing employment upon release.

These alternate sentencing programs help offenders avoid jail and prison time, allowing them to escape the very system that some argue creates more crime. They can also be beneficial for the community, public safety, reducing recidivism and even the fiscal budget. However, these benefits should be tangible for all those eligible, regardless of a person’s ability to pay. Otherwise, our system is effectively handing out harsher punishments for those who are poor.

Policy

The nation’s current criminal justice system is punishing poor and low-income individuals at a disproportionate rate. Not only are people being thrown into jails and prisons because they cannot afford to pay various fines and fees, but these same people are facing a much harsher time in custody than their affluent counterparts.

There have been numerous studies to show that there is a correlation between the time an individual spends in custody and the likelihood that he will commit another crime. Imprisoning people based on a failure to pay and racking up fines and fees against them while they are in custody is not benefiting society in any way: incarceration is costly and the tremendous debt that people are incurring is almost never repaid. Moving to an individualized punishment system similar to Finland, where fines and fees are assessed based on ability to pay and income, would not only help save taxpayers’ money, but it would be a system that actually treats individuals fairly.

 

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Money Can buy you Happiness in Jail

As I have previously discussed, the criminal justice system has become an avenue for the government to make money. We are seeing an influx of cities, counties, and states using criminal charges as a basis for monetary charges assed in exchange for someone’s physical freedom during pretrial, to charge for basic needs while in custody, and to charge for post-sentencing court-imposed requirements. My previous post focused on pretrial release fines and fees and my next post will hone in on the fines and fees related to diversion programs and post-sentencing release, which means this post will illustrate fines and fees imposed while in custody.

A defendant may be in custody at any time once she is arrested for a crime. She may be in custody both pending and during trial because she was ineligible for release (either by statute, a judge’s discretion, or because she did not have the means to pay for her release), or she may be in custody as part of her sentencing. Typically, a person in jail, opposed to prison, is there either pretrial or during trial but pre-conviction; awaiting sentencing and/or transfer to another facility; or serving a relatively short sentence, usually a term less than one year. Prisons are long-term holding facilities that typically house individuals who were convicted of a felony and sentenced to serve more than one year. This post will include fines and fees imposed and collected in both jails and prisons. 

Pay to Stay

The in-custody fee that tends to have the most visceral reaction is the practice of ‘paying to stay’ or charging a ‘per diem’ fee. These fees, typically utilized by county jails, but also in place in prisons, actually charge inmates a daily ‘room and board’ fee for being incarcerated, as if the person 804af573e62f82bd5a90a97b187e0671checked into a hotel. Nationwide, it is unclear whether or not these fees begin accruing while a person is in custody prior to sentencing, if the per diems are only imposed once sentencing has taken place, or if, like in California, the fees can be charged retroactively for pre-sentencing custodial time after a person has been sentenced. Continue reading “Money Can buy you Happiness in Jail”

Don’t Forget to Tip the Court

A criminal defendant goes through the justice system in stages, starting with the pretrial stage. This stage encompasses the moment a person has had a brush with the law, either through a citation or by being arrested, and extends to the point when a trial has begun. There are numerous opportunities during pretrial that a defendant can take advantage to be released from custody if she has the monetary means to do so. The most obvious is money bail, which has been criticized as a broken system due to many factors, including the large sum of money that the bail industry reportedly owes the state of California. However, my discussion will focus on other avenues of pretrial release and how money and wealth are still intertwined in those alternatives, starting with cite and release practices.

Under the California Penal Code section 853.6 police are required to grant pretrial release of persons arrested for misdemeanor crimes and, issue a citation, absent certain conditions (sections 1 and 2). The rationale behind this sort of release is twofold. First, misdemeanor arrestees pose a minimal threat to public safety, which is the most commonly articulated reason for detaining a person pretrial. Second, issuing a citation in misdemeanor cases is sufficient to ensure that the person will be present for future court proceedings. Further, pretrial incarceration has posed serious questions surrounding deprivation of due process, since some studies (pdf. page 62) have shown that defendants who are kept in custody during pretrial tend to have far worse outcomes than their free counterparts. So, if you are lucky enough to be cited and released, how does the size of your bank account affect the next phase of the pretrial stage? Continue reading “Don’t Forget to Tip the Court”

America: The Land of The Free or The Land of Buying Your Freedom?

The criminal justice system in America is broken and has become a vehicle for collecting money from its passengers. Imagine getting arrested and brought into your local jail. What is the first thing that comes to your mind? Mine would be “what do I have to do to get out of here?” Well, the answer to that question is simpler than you probably would have imagined: money.

Most people only associate money bail with the adverse effects that wealth can play when determining whether someone has the ability to stay out of custody. Money bail is only part of the issue, however. Wealth is a catalyst for many injustices across the nation including the criminal justice system. Impoverished criminal defendants are not afforded the same opportunities as their wealthy counterparts merely because they do not have the monetary means. A poor criminal defendant will face many disadvantages throughout the criminal justice system for the sole reason of being poor. Over the next few posts I will discuss some of these disadvantages.

There are a few different ways to be released from custody, depending on what stage of the criminal process you are in: pre-trial, post-conviction, and post-sentence.

In the pre-trial stage, which extends from the moment you have been cited or arrested and booked, through bail hearings and arraignments, to the moment a criminal trial has begun, you are eligible to be released in three ways. The first and most well-known is money bail, the process where you pay a fee in order to be released. The second is release on your own recognizance, without supervision (O.R.) which involves a promise to come back to court and agreement to other various conditions (this includes cite and release). The third is release on your own recognizance with supervision (S.O.R.), where you agree to those same conditions (and more likely others) but the main difference is that those who are released on S.O.R. must check in with pretrial services for drug tests, alcohol tests, and the like.

In the post-trial or post-conviction stage of the criminal process, you may have the opportunity to be released from custody or avoid it all together. This takes form in some of the following ways: you can be put on court probation, which is similar to O.R. in that you agree to abide to terms and conditions, but you do so for a set amount of time; you can also be put on supervised court probation, which is essentially probation with the caveat of reporting to a probation officer every so often (think S.O.R. at a different stage of the process); you can be eligible for various alternative sentencing programs which include drug and alcohol treatment facilities, halfway houses, and city or county work programs where you work off your sentence; or you can pay a fine and be released. Should you be ineligible for any and all of these alternatives, you’ll be looking at life from a new perspective: behind bars.

If you do end up in custody, upon your release you may have to serve time on PRCS, which is similar to S.O.R. and supervised probation, but given a different name because of the point in the process in which it occurs.

So what do all of these things have in common? Money. Aside from the obvious ‘money bail’, each of these avenues in the criminal justice system costs money. For example, pre-sentence reports cost money: without them, you can’t get probation. Drug tests cost money: without them, you can’t get alternative sentencing. Classes cost money: without them, you might be unable to fulfill your terms of release. That doesn’t even mention the costs of renting electronic bracelets for home detention. These various costs all fall under the term “Legal Financial Obligations” or LFOs, a term coined by Wayne A. Logan and Ronald F. Wright in their article Mercenary Criminal Justice. If you consider all the different ways a criminal defendant can be charged monetarily, it’s difficult not to wonder about the disparate impact these LFOs have on impoverished and indigent defendants.

Well, so what, right? You do the crime, you do the time, or in this case, you do the crime, you pay the fine. The problem is that this system of ‘justice’ has created a means of punishing the poor much more harshly than the middle and upper classes.

Over the next few posts, I will be discussing specifically the different fines and fees that are imposed on defendants at different stages of the criminal justice process in California and what some of the implications are from those fines and fees. I will begin by discussing the pre-trial stage and how money is the primary proxy for being released from custody. Money bail is only the tip of the iceberg when it comes to wealth being a factor for who stays in and who gets out. If we are to really look at the ways in which poor people are affected, we must extend our investigation to LFOs.

Debtors’s Prison: How Fines and Fees are keeping the Poor Locked Up

Our nation’s citizens are plagued with a persistent wealth inequality from coast to coast that has infiltrated the entire nation, including within the criminal justice system. I will be writing about the various fines and fees that the criminal justice system imposes on criminal defendants that perpetuates the wealth gap both pre and post-trial. Money is a key factor to answering whether someone spends a night or year in jail or is free to go home; whether someone has the opportunity to participate in a diversion program and potentially get the help they need; and whether one mistake can cause an individual endless and insurmountable debt. I intend to shine light on the way that the criminal justice system has utilized money, or lack thereof, as a proxy for punishment across California. I will also be discussing various fines, fees, and bail systems throughout the nation, juxtaposing them with California’s current procedures.

I’m Vicky Perry, a second year student at Santa Clara Law. I previously studied justice studies and human rights at San Jose State and am furthering my studies in criminal justice at Santa Clara by working towards obtaining a Public Interest and Social Justice Law Certificate. I intend to use my B.S. and anticipated J.D. to practice criminal law, focusing on alleviating the inequalities that the current justice system perpetuates.