What Is The Purpose Of Bail? It Depends On Who You Talk To

While discussing the California bail system, a Santa Clara County district attorney said, “It’s just so difficult to get guilty pleas from defendants who are NOT in custody.” (Emphasis added) These statements, along with many others I’ve heard over the course of my research, serve to reinforce common misunderstandings about the bail system. These misunderstandings, in turn, have misdirected conversations about what the U.S. bail system is intended to accomplish.

Immediately after hearing the district attorney make this statement, I thought to myself, “if a defendant is truly guilty, a fast and easy guilty plea would certainly save the county a lot of resources and it would be in the best interest of the community because it would ensure speedy justice for the victim.” However, a fast and easy plea deal is not beneficial to everyone when we consider the effects of detaining individuals prior to trial.

Over 62% of county jail inmates are NON-CONVICTED individuals. This means that over half of the jail population is made up of people who have not yet been found guilty beyond a reasonable doubt. Individuals accused of a misdemeanor spend more than 30 days in jail before they are tried and either found not guilty or convicted. When we consider all of this, it’s reasonable to assume that many individuals who are wrongfully accused may be coerced into a guilty plea simply because they are desperate to get out of jail.

District attorneys are charged with proving an accused individual’s guilt beyond a reasonable doubt. Negotiating plea deals is also an important and necessary part of their job. Therefore, keeping defendants in custody is beneficial to this part of their work because it provides an incentive for the accused to agree. This however, has absolutely nothing to do with the purposes of the U.S. bail system. Stated another way, the U.S. bail system is not in place to keep a defendant in custody for the sake of helping district attorneys do their jobs. In this post, I will provide commentary on other misconceptions I’ve found during my research.

To date, I have uncovered and corrected some of the misleading information available to the public about the U.S. bail system in an attempt to foster public discourse in a meaningful way. In a previous post, I took it upon myself to provide readers with a thorough understanding of the term “bail.” Unsurprisingly, when I read a publication that uses misleading information to further spread the belief that bail must always involve money, or that it should accomplish anything other than what its meant to accomplish, I am quick to respond with complete and accurate information.

On November 1, 2012, the Golden State Bail Agents Association published a testimonial written by one of their attorneys, Mr. Albert W. Ramirez. Mr. Ramirez’s testimony, while not technically wrong, is misleading and demands some elaboration. This testimony was made before the California General Assembly. In this post, I don’t intend to disprove Mr. Ramirez and I don’t intend for this post to serve as a response to his statements. I only cite to his testimony because it provides an illustration of the common misconceptions I’ve found during my research.

In this post, I will supply that elaboration by offering an accurate statement of the issue at hand and then following with an explanation of how the statements made by Mr. Ramirez are misleading. I don’t urge readers to read or accept Mr. Ramirez’s testimony because I have taken issue with the way in which it misleads readers. Further, it is not necessary to read the testimony as I’ve included the relevant statements for my commentary.

Myth: Money bail opponents think bail is too expensive.

Truth: Advocates for bail system reform seek to reduce the number of detained pretrial defendants in order to achieve a fair and effective system.

Mr. Ramirez maintains that, “California’s commercial bail system has been under attack by the ACLU” and that the “ACLU’s primary criticism of commercial bail is that it’s too expensive.” (Page 1) First and foremost, “the attack” as he calls it is not necessarily on the commercial bail system, as the ACLU and other groups have clearly indicated that their concerns are directly associated with the entire bail system as a whole. On numerous occasions, the ACLU has specifically been critical of the money bail system for the detrimental effects it has on the poor. For example, a dangerous but wealthy individual may be released from custody by paying money bail while a person who does not pose a danger to society may be held simply because they cannot afford to do the same. Both of these scenarios are bad for obvious reasons and have absolutely nothing to do with the commercial bail system.

Further, concerns over the U.S. bail system stem from the large numbers of individuals currently incarcerated. While the ACLU has indeed urged states to pass more stringent regulations for regulating commercial bail, it’s important for readers to be aware that stringent regulation is not an attack on the commercial bail industry, but rather a means for protecting the rights of the indigent, who happen to be the clients of private commercial bail companies. Some states such as New Jersey have already taken steps towards this.

Myth: The effectiveness of any bail system is best measured by failure to appear rates.

Truth: The bail system is in place to both ensure a defendant’s appearance at court and ensure public safety.

Many commercial bail supporters (including Mr. Ramirez) misguidedly rely on the failure to appear (FTA) rates to argue that commercial bail is much more effective than other forms of release such as Own Recognizance release (OR). David Ball at the Santa Clara University School of Law illustrates why FTA is not a great measure of effectiveness. For the purposes of this post, the key takeaway from Professor Ball’s article is the fact that while the bail system is in place to ensure a defendant’s appearance in court, that’s not all it’s meant to accomplish and ensure.

Mr. Ramirez correctly states, “Our criminal justice system cannot function if defendants fail to appear for their court proceedings,” but he completely disregards the fact that these failure to appear rates do not capture the whole picture. (Page 1) For one thing, a defendant may be returned to custody due to being rearrested (possibly on different charges). When that occurs, there is virtually no chance that he will miss any court dates as he is in custody and the jail officials will simply surrender him to the court on his given court date. Mr. Ramirez, like many other commercial bail proponents, completely ignores the fact that the justice system is also meant to guarantee a defendant’s release under the least restrictive conditions and ensure public safety.

Myth: Commercial bail is a necessary component of the criminal justice system.

Truth: There are many alternatives to commercial bail such as releasing people on “bail” without the need for bail bonds.

The effectiveness of a pretrial release method must include considerations of both the defendant’s likelihood to appear for their scheduled court date and their threat to public safety. As already mentioned, bail is meant to ensure that a defendant appears at his court date. This requires the court to impose certain conditions upon a defendant’s release in order to ensure that he shows up to his court date. When determining bail terms and conditions, a judge is required to consider whether the defendants pose a risk to public safety.

Mr. Ramirez cites to “The most comprehensive study ever done on bail” in an attempt to undercut the entire purpose of bail by simply focusing on failure to appear. (Page 3) The testimony ignores the fact that pretrial release determinations vary from state to state with regards to criteria used and the specific conditions of release. In some states, defendants are much more likely to be released with little to no consideration of their threat to public safety or their likelihood to appear in court. This is important because a pretrial system that considers the threat to public safety in their determination for release will likely provide a much more thorough interview and as such likely to release fewer defendants.

Mr. Ramirez states that “A risk assessment tool is merely a questionnaire consisting of a list of factors that have been shown to correlate one way or another with criminality or flight risk.” and then proceeds to question the validity of such findings. (Page 6) Specifically noteworthy is the fact that Mr. Ramirez’s fails to acknowledge that some jurisdiction, such as Santa Clara, have a comprehensive system in which defendants are thoroughly interviewed and the determination about their release is made after a long process.

In Santa Clara County, federal and state constitutional protections from excessive bail are often successfully implemented through pretrial release programs.

One key issue in Mr. Ramirez’s testimony is the fact that many of his statements rely on the idea or assumption that people have “the right to bail.” As previously stated, “bail” refers to all types of pretrial release, not just those made in exchange for money. (Page 3) The protections and rights prescribed by the federal and California constitutions do not guarantee that an individual is entitled to any specific type of release from custody. In fact, some defendants are not entitled to any kind of release at all.

It is certainly true that many California residents, along with many other U.S. residents, have money bail set, and that they often use commercial bail companies when they cannot afford to pay the full amount of money required by the court. Thus, while many residents use commercial bail companies to secure their release from custody, it is not true that “bail” is usually implemented through commercial bail companies. Courts not only release defendants by setting an amount of money that must be paid by the defendant to the court—they also release defendants on certain conditions, or simply cite and release the individual with a promise to return to court.

More importantly, protections from excessive bail are embedded in the Constitution of the United States as well as in many state constitutions. Unlike the misguided statement I quoted at the beginning of this post, these protections are specifically designed to protect defendants from entering into coerced or false guilty pleas. Also, contrary to popular belief, this protection does not grant an individual the right to pay a bail agent a large sum of money in exchange for his freedom.

This protection simply grants an individual the right to be released from custody, while he awaits his trial, under the least restrictive conditions. I mention the term “popular belief” because this is yet another misguided assumption that a lot of Americans (myself included) have been led to believe by statements from officials in high positions (like the district attorney), news coverage, and other popular media.

Why does this all matter? Misunderstandings about the U.S. bail system and the protections afforded by the Eighth Amendment have limited conversations about how this system can be improved both to ensure community safety and a defendants appearance in court. Money bail has become the norm and many have accepted it as the only system simply because it’s all we have known. These limitations have blinded most people from truly appreciating the fact that money bail does not accomplish any of its goals. These limitations have also allowed many to ignore the fact that there are alternatives to bail. A meaningful conversation about bail reform is long overdue and it must begin with accurate information.

 

 

 

¿HA SIDO DETENIDO POR UN DELITO MENOR?

Este semestre, la clase del derecho penal investigó la forma de fianza que opera en el condado de Santa Clara. La clase descubrió que las personas que han sido detenidos y llevados a la cárcel principal no tienen acceso a la información necesaria sobre la liberación durante el proceso de reserva (booking). Mientras que hay anuncios con información de las empresas comerciales de fianza, no hay nada publicado en “el tanque” para explicarle a la gente que es posible ser liberado sin necesitar que pagar nada pagar por su liberación antes de la conclusión de su caso. Erin Callahan escribió acerca de los posibles problemas que esto podría causar a las personas acusadas de un delito menor.

Después de aprender acerca de este problema, mi colega Ruby Renteria y yo decidimos crear un documento que les explique a los individuos que pueden ser elegibles para salir automáticamente con una promesa de regresar a corte y la liberación propia (OR) que podría ser publicado en el tanque. Hicimos la hoja que se encuentra abajo y se la presentamos a el Grupo de Fianza y Liberación (Bail and Release Work Group) de el condado de Santa Clara. Esperamos que esto marque el inicio para asegurarnos que esta hoja se agá disponible para las personas que necesitan esta información.

OR Worksheet_SPANISH

A Monopoly On Information: How Advertising In Jails Is Problematic For Defendants

Imagine being arrested and finding yourself in a jail cell. You have no access to a phone or the outside world. You know you have to show up for work the next morning but you have no idea what’s about to happen to you. You’re confused, afraid, and you would do anything to get out.

A few hours later you’re placed into “the tank” where an officer begins to ask you question. The tank is a holding cell filled with other recent arrestees all awaiting their fate. There’s not much to look at in “the tank” but you do notice a poster on the wall. The poster gives the names and numbers of many different bail bond agencies. You have no idea what a bail bond is and you’re still confused about what’s about to happen to you, but the advertisement tells you these agencies can help you get out.

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The questioning stops and you ask if you can call one of the agencies. The officer allows this phone call without hesitation. Your call goes right through at no cost to you (not yet, anyway). This is because bail bond agencies generally contract with the jail phone service providers to ensure that defendants inside the jail have immediate access to them.

 

You speak to an agent named Bad Boy who promises he can bail you out in forty-five minutes. Unlike the officers and other law enforcement personnel you’ve come in contract with since your arrest, Bad Boy treats you like you’re human. At this point, you agree to pay him $5,000.00, 10% of the total cost of bail, to come bail you out. He tells you he can contact your wife for you and let her know you’re coming home. But most importantly, he tells you “everything is going to be okay” now that you’ve contacted him.

A few hours after you hang up the phone, Bad Boy comes and picks you up from jail. However, instead of taking you home, he takes you into his office to sign a lengthy contract that you don’t understand. At this point, you’re so exhausted that you sign without reading it (and because Bad Boy was so nice and polite). You are now facing a multitude of inconveniences: criminal charges from your arrest, expensive court fines, missed work, and now a contract with a bail bond agency where you have agreed to pay thousands of dollars.

This scene is all too familiar for those who have spent enough time researching the bail system in the United States. Many issues arise out of this particular scenario. First, some defendants can be released on their own recognizance (OR) at no cost and may benefit from waiting to obtain a pretrial services assessment. Second, these types of contracts place defendants and their families in a very vulnerable position.

In this post, I will discuss advertising in Santa Clara County Main Jail. Specifically, I will look at the way in which bail bond agencies have been given a monopoly on the information available to the accused. A monopoly is complete control of the entire supply of a service in a certain area or market. For the purposes of this discussion the service provided is information about release available to the accused and the area or market is the jail. Those in control are the bail bond agencies. Readers must note that private defense attorneys are also allowed to advertise in county jails. While this also raises several concerns, I only discuss bail bond agency advertising because of the specific impacts associated with that advertising: how these agencies control the information available to a defendant and in some instances are a defendant’s only method of contact with the outside world.

I use the term defendant and accused interchangeably because it is often the case that someone may be arrested and never actually charged with a crime. My post begins by discussing how advertising has made its way into the county jails. I will then proceed to identify the steps involved in determining the ins and outs of this advertising. I will conclude by posing many unanswered questions pertaining to the negative effects of this form of advertising.

The Unexamined Consequences of Allowing Advertisements in County Jails:

In a letter dated March 1, 2016, John Hirokawa, the Santa Clara County Chief of Correction, recommended that the Board of Supervisors of the County of Santa Clara (the County) approve an agreement with the Jail Advertising Network (formerly known as Partners for a Safer America.) I will proceed in this post by referring to the Jail Advertising Network as Partners for a Safer America (PSA) because that is the name used in many of the Santa Clara County records. The agreement was approved. It allows PSA to sell advertising space in the Santa Clara County jails, bringing in over a hundred thousand dollars in revenue for the department of corrections(DOC). The only people/entities eligible to purchase advertising space are bail bond agencies and private defense attorneys.

In his recommendation, Hirokawa discusses the history of similar agreements made by the County and provides minimal information on the potential impacts of approving the agreement. Hirokawa writes, “the recommended action will have no/neutral” impacts on children, seniors, and sustainability. In one of his concluding statements, he indicates that the “DOC … would lose over 100K in revenues” if this agreement is not approved. Hirokawa’s letter fails to so much as even mention some of the potential negative consequences of this approval. For example, allowing for such advertisements without informing defendants of the potential for OR release may result in a defendant unnecessarily paying thousands of dollars to a bail agent. This lack of awareness or willful blindness on the part of the County is troubling primarily because it shows a complete disregard for the financial welfare of the accused, many of whom are their constituents.

Partners for a Safer America (Jail Advertising Network)

Let me digress for a moment to provide some background information on PSA and what it is they actually do. Simply stated, they are a company that contracts with counties all over California to sell advertisement to bail bond agencies. They keep anywhere from 20-30% of the profits and the County gets the rest (usually 70%-80%). The advertisement or product they produce is a poster board (as shown above). While this may sound simple, their home page provides a much more expansive interpretation of their work. The home page begins by describing the financial troubles faced by law enforcement agencies all over the United States. Their sales pitch concludes with a thought-provoking sentence, “As we grow in the number of institutions we support, we hope to realize the vision of safer, more secure communities from coast to coast.”

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At a first glance, it appears as though PSA is an agent of the counties they “support.” PSA’s website further encourages this mistaken belief by declaring their purpose is to provide “financial support and resources to those who keep our communities safe” and by using photos like the one above. To a naive outsider, it appears as though the PSA mission is much broader than simply providing advertising for bail bond agencies and private defense attorneys. 

 

Continue reading “A Monopoly On Information: How Advertising In Jails Is Problematic For Defendants”

Bail: What are we even talking about?

While listening to a the radio a few weeks ago, I came across a very interesting story that touched on the United States bail system and the role bail bond agencies play within this system. The radio segment told the story of an individual who couldn’t afford to pay the amount of money set by the judge for her boyfriend’s release and thus required the service of a bail bond agent in order to be released from custody.

Many will go through life without ever having to worry about the term “bail” and its definition. However, given the fact that over 12,000,000 people are arrested in the U.S. every year, it’s probably not a bad idea to have a basic understanding of what “bail” actually means. In this post, I will provide readers with a thorough understanding of the many terms that make up the bail system. I will also try to clarify some of the misleading information that’s available.

It is common to see a prosecutor quoted in a news article demanding that a judge set a high money bail amount in order to ensure that the dangerous defendant remains in jail. The news articles will cite to the hundreds of thousands of dollars and sometimes even millions that the defendant will be required to “post” in order to be released from custody while he or she awaits trial.

On the one hand, this type of news coverage provides the general public with an important association: bail and the criminal justice system. On the other hand, it also provides a flawed assumption: that bail is what defendants must pay in order to be released from custody when they are arrested. Private bail bond agencies similarly attempt to confine the term “bail” within these limited boundaries by specifically defining bail as the amount of money set by the judge.

This notion of what bail means is not necessarily wrong. However, it is misleading and limited for three reasons: it assumes that bail must always require a money amount, it also assumes that a dangerous defendant will not be released unless they pay the amount set by the judge, and it ignores the fact that a defendant who hasn’t been convicted is supposed to be deemed innocent until proven guilty. This post will clarify why bail is not limited to a money amount and why sometimes defendants (even those deemed very dangerous) are released even when they cannot pay the money bail set by the judge. This post will also question how the definition of bail has been construed so as to ignore the important reasons bail exists in the first place.

So what does “bail” actually mean?
The bail system is a way for the accused to be released from custody while they await trial. Hence, bail is something the defendant gives the court in order to be released from custody. The term “bail” can include a sum of money that must be paid immediately, but it can also include a bond (promise). This promise can be required from the defendant if the court believes they are not a threat to public safety or it can also be required from a bail bond agency. This brings me to the service that’s provided by a bail agent: in exchange for a fee running anywhere from $200-$10,000, a bail agent provides the court with a promise that the defendant will appear in court. In other words, the defendant pays the bail bond agency a sum of money and the bail bond agency promises the court that the defendant will show up to their court date. In this instance, if the defendant fails to appear, the bail bond agency is supposed to be the responsible party.

Before I begin to illustrate what a bail bond is, I would like to clarify two things. First, bail can include the amount of money set by a judge. For example, where bail is set at $100,000.00, if the defendant is able to pay that amount, he will be released from custody. The amount he paid will be returned to him so long as he shows up to his scheduled court date. Second, bail is used for specific and necessary purposes such as ensuring the presence of the defendant at trial and for public safety. Bail is not a means to keep a defendant in custody.

So, what happens when the defendant doesn’t have $100,000.00 sitting in the bank? Or, how about those defendants (and yes, they do exist) who are not likely to skip a court date and who are not a threat to public safety? This is where the term “bail bond” comes into play, or where I argue that it should come into play. A bond is a formal written agreement in which a person undertakes an obligation(s). If the person fails to perform that obligation, they are required to pay a certain amount of money.

In the context of the criminal justice system, a bail bond can include the court merely asking the defendant to sign a promise agreement where he agrees to appear in court. The court can then set an amount of money that the defendant will be required to pay should he fail to show up to court. The fundamental obligation here is ensuring that the defendant will appear in court when he is scheduled to be there as his failure to do so is what triggers the obligation to pay. By this logic, it would make sense that defendants are afraid of having to pay this large sum of money and will therefore appear in court in order to avoid it (not to mention the fact that failure to appear is a crime in and of itself). As mentioned above, if the defendant has paid money to the court, in doing so he also agrees that he will return to court for his scheduled court date. Those who have already paid are ensured to appear in court because they risk having to forfeit that money. However, if the defendant is very wealthy, perhaps there is no amount that can ensure they will appear in court.

How does the idea of public safety fit into all of this? If the defendant is so dangerous that he poses a significant danger to society, how does a certain dollar amount ensure that the defendant, when released, will not go out and well…be dangerous? The fact is no money amount can ensure that a dangerous defendant will not be dangerous. Therefore, the same logic that allows us to conclude that a money amount may ensure a defendant’s appearance in court cannot possibly allow us to conclude that a certain amount of money can ensure public safety. The answer to these questions is far from simple. However, a bail system that prides itself in making public safety the number one priority must include other means by which to achieve this goal–means other than a set money amount. My next posts will go deeper into the definition of what a bail bond is, the role that bail bond agencies play in this system, and the ways in which this system has failed to ensure public safety.

Lack Of Information In The Age Of Information: Exploring Available Information About The United States’ Bail System

In the early 1990’s the American Bail Coalition (ABC) began a campaign where it urged cities and counties to get rid of their pretrial programs. Money bail forces people to choose between remaining in custody for months or paying a large sum of money. Pretrial programs are an alternative to custody: individuals are released to the community under supervision while they await trial, allowing them to return to work. In its campaign, ABC wrote a letter to cities and counties where they referenced data from the Bureau of Justice Statistics. The letter suggested that money bail, rather than pretrial programs, is more effective at ensuring that individuals show up to their court dates. ABC ignores the fact that many states have recognized public safety to be the most important consideration when determining bail. As I began learning more about the California bail system, it became apparent that a lot (if not most) of the information available on this topic is also misleading and is often provided by the private bail industry. In my blog series, I will expose some of the data that is out there and shed light on the negative impacts of the private bail industry on public safety. I will look at the information released by the private bail industry and expose the ways in which they have interpreted data and released information.

I am a third year law student at Santa Clara University School of Law. I was recently awarded an Equal Justice Works fellowship with the Law Foundation of Silicon Valley. As an Equal Justice Works fellow, I will continue advocating on behalf of tenants upon graduation. Prior to law school, I spent three years working alongside low-income individuals in the areas of civic engagement. While in law school, I have represented low-income tenants in all aspects of landlord tenant law and wrote many articles about the ways in which prohibition of marijuana impacts low-income tenants. I am committed to advocating on behalf of those who cannot advocate for themselves. I hope my research will positively influence bail reform because it is an area that directly and negatively impacts some of the most marginalized individuals in my community.