In my last post, I talked about the lack of regulations in setting immigration bond and the great disparity in the amount of bond granted. A couple of weeks ago I had the chance to witness a few immigration bond hearings in San Francisco. Each hearing was different, and each had a different result.
The Immigration Judge granted bond in only one case, setting it at $10,000, and ordered only one release without bond. Both of these individuals had legal representation. The first one had been arrested for disorderly conduct, a misdemeanor. The second one was a Franco case, meaning that the individual was someone with a mental disability. In 2013, Franco-Gonzalez v. Holder resulted in an injunction requiring the government to appoint counsel and provide bond hearings for seriously mentally ill noncitizens detained in Arizona, California and Washington. This explains why, even though an interpreter was present, the judge did not question the man in a red jumpsuit sitting in court quietly and absent-mindedly. All questions and instructions were directed at his “qualified representative”, an attorney from a local non-profit organization who successfully argued that her client did not represent a danger to the community and that he would not be able to pay even the minimum amount of bond ($1,500).
I also witnessed several Rodriguez bond hearings, also known as custody determination hearings, for non-citizens who had been detained for six months or longer. For the first two Rodriguez bond cases, the attorneys simply asked for a continuance. To my surprise, the judge warned the two attorneys that in his experience, unless a stay (a temporary postponement of an order of removal) had been granted it would not be surprising if the non-citizens were removed before the next hearing. This is because in immigration court an appeal does not carry an automatic stay, nor does a Rodriguez bond hearing.
The other three individuals seeking Rodriguez bond were unrepresented and all appeared via video teleconferencing (VTC). The first one asked for more time to find an attorney. The next was a 26-year-old immigrant from Honduras who had been previously deported. He spoke English fluently and asked the judge to grant his release so he could go back to work as a cook and provide for his 3-year-old son and his family. The judge asked if he owned any property or had any savings; the young man replied that he only had $3,000. The judge denied bond, citing a “serious” flight risk because did not have family ties in the U.S. To be honest, I thought that if the judge was to deny bond it would be because in an effort to be honest, as this young man put it, he also said that he had been detained for a DUI previously and that ICE believed him to have had gang affiliation when he was a minor, which he vehemently denied. It seems that the judge did not think he was a danger, but still denied the bond despite the fact that this man’s whole family lives in the U.S., including his Legal Permanent Resident (LPR) mother, who had already filed a petition seeking permanent residence status for him as well.
The last hearing I sat through was for a homeless veteran, a legal permanent resident and former Marine. After being asked if he needed more time to find an attorney he told the judge he had written to several non-profits seeking legal representation but had not heard back from any of them. He told the judge he wanted to represent himself because he was having a “really hard time” being detained and wanted a chance to explain how he believed he is a citizen. He had taken a citizenship class and filed paperwork to become a citizen in 1991, while he was still on active duty. When the judge asked if he had any proof he replied that he had been homeless for the past six years and did not keep any documents. He also said he suffers from serious Post Traumatic Stress Disorder (PTSD), and was having a very difficult time coping with being detained. The judge denied bond.
After the hearings concluded I asked the judge about how lack of representation affects a case, and he insisted that it does not affect the ultimate outcome of bond hearings. But although I only sat through a handful of hearings, only two individuals were ordered released – one on bond and other with certain conditions – and both were represented. As I wrote in my last post, judges do not have to consider ability to pay, so I had to ask the judge about his reason for asking about the individual’s assets in one of the cases; he said that he did this in order to set bond at an amount that represents more than just a fraction of the individual’s assets and thus have stronger assurance that the individual will continue to appear in court.
Lastly, I asked about the effects of the Rodriguez ruling and whether more bonds were being granted now that more individuals were eligible for these hearings. The judge said that in his experience 99.9% of Rodriguez bonds were denied, as judges still had to decide whether the individual is a danger to the community or a flight risk. This is consistent with what I saw; not a single Rodriguez bond was granted that morning. However, this should not be interpreted as non-citizens being denied because they are an actual danger to the community.
Bond and Refugees:
If there is one group that has felt the harsh consequences of the lack of safeguards in immigration bond proceedings, including immigration bond, it is refugees, especially Central American mothers and children fleeing unimaginable violence in their home countries. After making a grueling journey though several countries, risking being raped, assaulted, and even killed, when they finally get to the border seeking asylum they are quickly detained and sent to “family” detention centers, such as Karnes, in South Texas. Karnes is run by the GEO Group, a private correctional detention company and was recently granted a temporary “residential child care license”, a move to circumvent an order from the Federal District Court for the Central District of California, which last August gave the Obama administration two months to release refugee children held in these unlicensed facilities. It is too soon to know the actual effect, but at the very least this means that the Obama administration can now continue to detain women and children indefinitely. Before last year’s Court order to release children from these detention facilities was issued, families had many complaints, including sexual abuse of women, lack of proper medical care for children, and bonds being set as high as $20,000.
Samey, a former interpreter for the U.S. and NATO forces in Afghanistan, who fled to seek asylum in the U.S. after being threatened by the Taliban has been detained for nearly a year. During Samey’s hearing before the judge, retired Lieutenant Colonel Mike Williams testified on his behalf and urged that Samey be granted asylum. Everyone thought that this was a “fairly open-and shut-case”; instead, the judge denied asylum and ordered Samey’s deportation. Samey did not have legal counsel. However, Samey was recently given a $25,000 bond, something he simply cannot afford. This high bond was set despite Samey not having a criminal record or presenting any danger to the community; he actually has family members who have been granted asylum on the same grounds, and even presented testimony by a former lieutenant colonel.
The Economic and Social Impact of Detention:
When a judge does grant bond, the person who pays the bond needs to have legal status, and in some cases has to be a family member. When immigrants cannot afford bond, it could lead to prolonged separation from their family and loss of social and economic support. The economic impact of detention could be measured in two ways – the cost incurred by the government when detaining immigrants for prolonged periods of time and the cost to the immigrants in the form of wages loss.
A survey of 562 immigrants detained in Southern California for six months or longer found that “approximately 90 percent were employed in the six months prior to detention.” The survey then calculated the collective lost wages due to detention to be nearly $11.9 million (or $43,357 per day). On the other hand, the government spent nearly $24.8 million dollars to detain these immigrants for an average of 274 days, with a daily cost of $161 dollars per detainee per day.
Sixty nine percent of the 562 surveyed immigrants had a U.S. Citizen or Legal Permanent resident spouse or child. About 94% were a source of financial or emotional support for their families, and 64% of these immigrants’ families had difficulty paying rent, mortgage or utility bills. In addition, 42% of families were unable to pay for necessary medical care and 37% could not pay for food. The lack of data makes it difficult to determine how many immigrants sitting in detention for prolonged periods of time are there simply because they cannot afford to post bond.
When bond is set at an amount a detainee and their family cannot afford, many are forced to contract with bond companies. Most companies require collateral, in the form of property or other assets, and they charge a non-refundable premium each year until the case is closed. This means non-citizens end up paying more than the actual bond amount and the collateral is not released until the end of the proceedings, which can take several years.
There is a new type of business that has emerged to service those who do not have property to use as collateral. The name of this company is “Libre” by Nexus. In my next post I will explain how “Libre” works and why customers are complaining.
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.
If you are in jail, imagine having your prior felony reclassified as a misdemeanor so that you no longer face six years in prison for stealing $10 worth of merchandise (anecdote to be shared below). Or, if you are released in society, imagine having your criminal record adjusted so you are no longer barred from receiving federal welfare, student grants, or medical care. (PDF pages 9-10). You also are no longer excluded from employment in care facilities, including child-care jobs, and you might no longer face automatic disqualification if potential employers discover your conviction records. (Although technically it is illegal for an employer to discriminate against an individual based on an individual’s criminal record, it certainly still happens). Further, if you are an undocumented immigrant, a parent, and facing deportation, your adjusted criminal record may qualify you for protection under Deferred Action for Parental Accountability (DAPA). (PDF page 5). Also, if you are undocumented, facing deportation, and entered the United States before you were sixteen, your adjusted criminal record may qualify you for protection under Deferred Action for Childhood Arrivals (DACA). (PDF page 5).
All four groups of people described above did not have these freedoms or protections prior to Prop 47’s passage. In addition to reducing prison and jail populations along with infrastructural costs, Prop 47 strove to change certain individuals’ felony records, improving the social and financial status of these individuals who had previously committed non-violent drug possession or petty theft crimes. Reclassification is not instantaneous, but it helps nonviolent offenders receive the financial support and employment opportunities necessary to become more fully integrated in society.
In a previous post, I described the basic structure of for profit bail and addressed potential concerns with the privatization of this section of criminal justice. This post will address whether private bail agents save taxpayers’ money, increase efficiency and innovation in pretrial release, allow policymakers to focus on policy instead of procedure, streamline and downsize government, and, for their customers, whether they increase flexibility of service, quality of service, and the appearance rate in court.
The best approach to this analysis is to look at the service needed, the service actually provided, and the comparative costs and benefits of the private system against public systems. (Here’s an alternative analysis concluding that financial remuneration for pretrial detainees is a preferred solution). The service needed is simple. We presume the innocence of criminal defendants and, in order to not deprive them of liberty without any proven reason, we release the defendant pending trial. The public wants assurances that the released defendant will: 1) not endanger public safety during pretrial release and 2) show up to court (or prevent a failure to appear, “FTA”). Money bail only addresses one of those needs – the failure to appear, discussed below. For the sake of argument, and because the bail industry claims to protect public safety, I address public safety first. Continue reading “Privatization of Money Bail”→
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.
Immigration bond, in theory, serves the same purpose as “bail” in that it helps procure the release of a detainee. It is essentially a contract between ICE and a person (or the bond company posting the bond) to ensure the release of an individual. The release is made in exchange for security given that that individual will appear in court or any other proceeding at a later date. But unlike bail, there are no constitutional safeguards against excessive bond.
Before I explain how immigration bond is set and what are some of the major issues surrounding this process, it’s important that I clarify that throughout this post I will use the words “immigrant” and “non-citizen” interchangeably. Non-citizens include those who are undocumented as well as those who are green card holders or who have other types of protected immigration status. It’s important to understand that undocumented immigrants are not the only ones who can be detained and deported. About 10% of those who are deported each year are green card holders; 68% are removed after committing minor, nonviolent crimes.
The number of Criminal “Aliens”:
For years, the Obama administration has claimed that ICE is focusing its efforts on convicted criminals, and is going after “gang bangers, people who are hurting the community, not after students, not after folks who are here just because they’re trying to figure out how to feed their families.” Perhaps in response to mounting criticism due to the high number of deportations, the Department of Homeland security (DHS) issued new guidelines in 2014, making the “removal of aliens who pose a danger to national security or a risk to public safety ICE’s highest immigration enforcement priority.”
But the numbers simply do not add up. First, the 2014 priority list includes “criminals” convicted of misdemeanors, as well as newly arrived immigrants, regardless of whether they present any security risks. Between 2010 and 2013, ICE removed 508,000 immigrants; only 3% had been convicted of violent or serious crimes (PDF page 10). ICE data released to the Transactional Records Access Clearinghouse (TRAC) shows that during April 2015 “only about one third (32%) of individuals on whom immigration detainers were placed had been convicted of a crime”; only 19% had a felony conviction, and two thirds had no criminal convictions. A “detainer” or “immigration hold” is the primary tool used by DHS to apprehend immigrants by asking local, state and federal law enforcement agencies to notify ICE of a pending release.
In California, 81% of detainers issued were for individuals with no criminal conviction. More recent data also shows that through February 2016, only 2% of those individuals in deportation proceedings nationwide were convicted of aggravated felonies, almost 7% had “other criminal charges”, and the rest had only immigration charges. What this data shows is that ICE has not limited its detention efforts to persons with serious convictions. Placing detainers on people with serious criminal convictions has, if anything, become less common.
As part of an effort to enhance its enforcement mechanisms, DHS has criminalized certain immigration violations, especially re-entry to the U.S. It is thus not surprising that non-citizens are overrepresented in federal prison populations. In 1990, there were only 1,728 inmates convicted of immigration violations (Table 19, page 12). But that number increased from 36,564 in 1992, to 75,867 in 2012.
In 2010, about 55,000 of so-called criminal aliens were incarcerated in federal prisons, and about 296,000 were in state prisons and local jails in 2009 (Figure 1, page 7). The majority, about 60%, were Mexican (Figure 2, page 9; Figure 6, page 15). About half of those incarcerated were charged with immigration (18%), drug (17%), or traffic violations (14%), and only a handful was charged with violent crimes (Table 2, page 21). More recent numbers show that in January 2016, about 16,809 inmates were in federal jails for immigration-related offenses, the third highest type of offense prosecuted during that period.
Who is Eligible For Bond?
Not everyone who is detained is deported, but this does not mean everyone else gets released. A non-citizen in removal proceedings has no constitutional right to be released on bond, and courts have consistently recognized that the government has extremely broad discretion in deciding whether or not to release a non-citizen on bond.
When a non-citizen is detained, ICE will make an independent determination of whether the person is eligible for bond. ICE bond can be granted at any point in the proceedings. If ICE does not set bond or sets a high bond, the detainee may request a bond hearing, also known as a custody determination hearing. The Immigration Judge will decide whether to set bond in exchange for the release, lower or raise the ICE bond, deny bond altogether, or allow for a release under other terms or conditions.
Unlike the criminal justice system, where a defendant can post bail before arraignment or at arraignment, but within 48 hours of arrest, an otherwise eligible detainee does not have the right to a bond hearing within a similar time frame. TRAC data shows that between November and December 2012, 66,306 people were “booked-out” of detention; over 4,000 were released under an order of recognizance, and 6,730 were bonded out. The average detention for those who were bonded out was 42 days; only 19% were released within 3 days, while 3% were released after 180 or more days.
Several courts have challenged the prolonged detention of immigrants without the right to a bond hearing. The Ninth and Second Circuits recently ruled that a bond hearing must automatically be held within six months of initial detention (Rodriguez; Lora). This makes those immigrants subject to mandatory detention eligible for a bond hearing, but this does not mean they are entitled to bond or that they can be released. However, the burden is on the government to show that continued detention is justified, which represents, in theory at least, a much-needed procedural safeguard.
For those immigrants whose cases are outside of these two circuits, prolonged mandatory detention is still an issue. But the Supreme Court could soon hear a case on this issue (Jennings v. Rodriguez).
How do judges decide the bond amount?
During a bond hearing, the Immigration Judge will consider two things: 1) whether the detainee is a danger to society and 2) whether he is a flight risk. The first can be shown through the absence of crimes, especially violent crimes. The second can be shown through evidence of family ties, especially if there are U.S. citizen children or a spouse, employment history, or letters of relatives or friends regarding the good moral character of the individual.
However, a judge “has broad discretion in deciding the factors that he or she may consider [and] may choose to give greater weight to one factor over others” (In Re Guerra, page 40). For instance, some judges will heavily consider and even require that the individual have potential relief from removal, such as having an immediate relative who can petition for them. But ability to pay is not one of the factors a judge considers (PDF pages 6-7).
If the judge denies bond, non-citizens can request a subsequent bond hearing if they can show that their circumstances have materially changed. A written motion explaining what has changed, along with proof, must be submitted (PDF page 3). Proof can consist of showing that detention has been prolonged, that the individual has been found non-removable because he now qualifies for relief or because criminal charges have been dismissed, or new case law has developed and it works in favor of the non-citizen.
Because Judges have broad discretion, it is not unheard of that bond is sometimes set at exorbitant amounts. By law the minimum amount bond can be set is $1,500, but there is no cap. While there is no comprehensive data on the average bond amount, a recent study of detainees in the Central District of California suggests that the average amounts range from $10,667 to $80,500 (PDF page 3). This same study found that detainees with felonies have an average bond amount of $47,133 while those without felonies have an average bond amount of $20,040. Another survey of 562 immigrants who had been detained in Southern California for six months or longer found that the median bond amount for these detainees was $15,000, “67% higher than the median bond amount of $9,000 for felony offenders in state criminal courts nationwide between 1990 and 2004” (PDF page 4).
Judges are supposed to make a bond determination based on all the information available at the time of the hearing. But if all the Judge has in front of him is information about a past criminal conviction, the likelihood of bond or low bond is greatly diminished. However, even if the Judges have more than just the criminal history, the study on central California detainees suggest that judges give more weight to criminal history, especially felony convictions, over other relevant factors (See PDF page 28).
The reality is that the immigration bond process can be complicated and non-citizen detainees many times are not represented and do not know that they only have one chance at a bond hearing. A national study of access to counsel in immigration court, found that of the 1.2 million removal cases decided between 2007 and 2012, only 37% had legal representation (PDF pages 11; 22). Those with legal representation were seven times more likely than pro se litigants to have a custody hearing and be released. While it did not specify under what conditions these non-citizens were released, it did find that those with legal representation showed up to court 93% of the time, compared to only 32% of pro se litigants (PDF page 73).
So, if Judges are supposed to be concerned not only with whether non-citizens are a danger to society, but with whether there is a risk that they will not return to Court, then providing legal representation in immigration matters, including custody determination hearings, may help ease that concern. And if the majority of non-citizens have no criminal convictions or have been convicted of non-violent crimes or of immigration violations alone (civil violation), then having legal representation may provide them with a more fair opportunity to make a case as to why they should be given a more affordable bond or be released under other conditions.
In my next post I will examine the practices of some bond companies that have greatly profited by the lack of uniformity and safeguards both inside and outside of immigration court. I will also examine the social and economic impact that high bond amounts have on immigrants and their families.
Fianza de Inmigración: Como la Libertad se ha Convertido en un Lujo Costoso para Algunos Inmigrantes
La fianza de inmigración, en teoría, sirve el mismo propósito que la fianza en el sistema criminal ya que ambas ayudan a procurar la libertad de un detenido. Es esencialmente un contrato entre inmigración y una persona (o compañía que pagará la fianza) para asegurar la libertad de un individuo. El detenido es puesto en libertad a cambio de la promesa que él regresará a corte o cualquier otro procedimiento judicial en el futuro. Pero a diferencia de la fianza penal, no hay garantías constitucionales contra una fianza de inmigración excesiva.
Antes de comenzar a explicar cómo se fija la fianza de inmigración y cuales son algunos de los problemas más graves con este proceso, es importante clarificar que durante este post yo usaré las palabras “inmigrante” y “no ciudadanos” de manera intercambiable. No-ciudadanos incluyen aquellos quienes son indocumentados, son residentes permanentes, y los que tienen otro tipo de protección migratoria. Es importante entender que los inmigrantes indocumentados no son los únicos que son detenidos y deportados. Un 10% de los deportados cada año son residentes permanentes; 60% son removidos después de haber cometido crímenes menores, no violentos.
El número de Extranjeros Criminales:
La administración del Presidente Obama ha mantenido por años que las autoridades de inmigración (ICE) se están enfocando en remover criminales sentenciados, y están hiendo tras “pandilleros, personas que afectan a la comunidad, no tras estudiantes, no tras aquellos que están aquí intentando mantener y sacar adelante a sus familias.” Tal vez en respuesta a criticas debido al gran numero de deportaciones, el Departamento de Seguridad Interna (DHS por sus sigla en Inglés) emitió nuevos reglamentos en 2014, haciendo la “deportación de extranjeros que posan un peligro para la seguridad nacional o riesgo a la seguridad pública la mayor prioridad para ICE.”
Pero los números no coinciden con los reglamentos de 2014. Primero, las prioridades de 2014 incluyen “criminales” que han sido condenados por crímenes menores, así como inmigrantes recién llegados, sin importar si presentan algún riesgo a la seguridad. Entre 2010 y 2013, ICE removió 508,000 inmigrantes de los cual solo 3% tenían antecedentes de delitos violentos o delitos serios. Datos proveídos al Transactional Records Access Clearinghouse (TRAC) muestran que durante Abril de 2015 “solo alrededor de un tercio (32%) de individuos a quienes se les dio orden de detención habían sido condenados con algún crimen”; solo el 19% tenían una sentencia por un crimen serio, y dos tercios no tenían antecedentes penales. Una “orden de detención”, también conocido como “ICE hold”, es la herramienta principal utilizada por DHS para detener a inmigrantes que están cumpliendo sentencia. ICE pide a agencias locales, estatales, o federales que le notifiquen sobre alguna liberación pendiente de personas no ciudadanas.
En California, 81% de las órdenes de detención emitidas fueron contra personas sin ningún antecedente penal. Datos más recientes muestran que durante Febrero de 2016, solo 2% de personas en proceso de deportación a nivel nacional tenían sentencias por crímenes serios con agravantes, casi el 7% tenían otros cargos criminales, y el resto solo tenían cargos por violar alguna ley de inmigración. Esto muestra que ICE no ha enfocado sus esfuerzos en detener a personas con cargos delictivos. Es más, órdenes de detención contra personas con sentencias por crímenes serios se han vuelto menos frecuente.
Como parte de los esfuerzos para mejorar la ejecución de sus reglas, DHS ha criminalizado ciertas violaciones migratorias, especialmente el reingreso a Estados Unidos después de una deportación previa. Es por eso que no es una sorpresa que personas sin ciudadanía estén sobrerrepresentados en las prisiones federales. En 1990, solo había 1,728 reclusos condenados por violaciones de inmigración. Pero este número incrementó de 36,564 en 1992 a 75,867 en 2012.
En 2010, al rededor de 55,000 supuestos extranjeros criminales fueron encarcelados en prisiones federales; y alrededor de 296,000 en prisiones estatales y cárceles locales en 2009. La mayoría de estos reclusos, alrededor de 60%, eran mexicanos. Cerca de la mitad de los encarcelados fueron acusados de violaciones migratorias (18%), relacionadas con drogas (17%), o por violaciones de tránsito (14%), y solo un pequeño número fueron acusados de crímenes violentos. Datos mas recientes muestran que en Enero de 2016, cerca de 16,809 reclusos se encontraban en cárceles federales por ofensas relacionadas con inmigración, el tercer tipo de ofensas mas frecuentemente juzgadas durante ese periodo.
¿Quienes son Elegibles para Fianza Migratoria?
No todos los que son detenidos son deportados, pero eso no quiere decir que todos los demás son puestos en libertad. Una persona en proceso de deportación no tiene derecho constitucional a ser puesto en libertad después de pagar una fianza. Las Cortes han reconocido de manera consistente que el gobierno tiene amplia discreción en decidir si pone a alguien en libertad bajo fianza o no.
Además, algunos inmigrantes están sujetos a una detención obligatoria. En 1996, el Congreso expandió de manera considerable las categorías de individuos que están sujetos a detención obligatoria e incluyó a inmigrantes acusados de virtualmente cualquier crimen, no solo crímenes serios con agravantes o crímenes de vileza moral. Debido al tema de este blog, me enfocaré en aquellos individuos que sí son elegibles para recibir fianza.
Cuando una persona no ciudadana es detenida, ICE puede hacer una determinación independiente sobre la elegibilidad de esta persona para fianza. La fianza de ICE puede ser concedida en cualquier momento durante el proceso. Si ICE decide no otorgar una fianza u otorga una fianza muy alta, el detenido puede pedir una audiencia de fianza, también conocida como una determinación de custodia. El Juez de Inmigración puede decidir si otorgar fianza, reducir o incrementar la fianza, negar fianza, u ordenar la liberación del detenido bajo otros términos o condiciones.
A diferencia del sistema penal, donde el acusado puede pagar una fianza antes o durante la audiencia donde se le leerán los cargos formales, pero dentro de un periodo de 48 horas después del arresto, un detenido en custodia de inmigración no tiene derecho a una audiencia de fianza durante un periodo similar. Datos de TRAC muestran que entre noviembre y diciembre de 2012, un total de 66,306 personas fueron procesadas fuera de detención. De ellas, más de 4,000 fueron puestos en libertad bajo promesa que el detenido regresaría a corte más adelante, y otros 6,730 fueron puestos en libertad después de pagar una fianza. El número promedio de días en que pagaron fianza es de 42 días; solo 19% fueron puestos en libertad después de 3 días de detención, mientras que 3% fueron puestos en libertad después de 180 días o mas.
Recientemente, algunas Cortes han cuestionado la detención prolongada sin derecho a una audiencia de fianza de ciertos inmigrantes. Las Cortes de Apelación del Noveno y el Segundo Circuito han decidido que una audiencia de fianza debe ser llevada a cabo automáticamente después de seis meses de la detención inicial. (Rodríguez; Lora). Esto significa que inmigrantes sujetos a detención obligatoria son elegibles a una audiencia de fianza, pero no son elegibles a recibir fianza o ser puestos en libertad. Sin embargo, el peso de probar por qué la detención prolongada es justificada cae sobre el gobierno. Esto representa, teóricamente, una protección muy valiosa para no ciudadanos en detención federal.
Para aquellos inmigrantes cuyos casos no se encuentran sujetos a la jurisdicción del Noveno y Segundo Circuito, la detención obligatoria prolongada sigue siendo un problema. Pero la Suprema Corte de Justicia podría pronto escuchar y decidir un caso sobre este problema. (Jennings v. Rodriguez).
¿Como los jueces deciden sobre la cantidad de fianza que se debe otorgar?
Durante una audiencia, el Juez de Inmigración debe considerar dos cosas: 1) si existe riesgo que el detenido no se presente a la siguiente audiencia, y 2) si el detenido representa un peligro a la sociedad. El detenido puede probar que no hay riesgo de que no se presente a corte mostrando evidencia de lazos familiares, especialmente si tiene hijos o esposa(o) que son ciudadanos Americanos, si tiene un historial de trabajo, o cartas de familiares o amigos que hablen sobre su buen carácter moral.
Sin embargo, un juez “tiene amplia discreción para decidir cuales factores considerar [y] puede elegir darle más valor a un factor sobre otros.” (In Re Guerra). Por ejemplo, algunos jueces le darán gran consideración, y hasta pueden requerir que el detenido tenga algún remedio para no ser removido, si existe un familiar que sea ciudadano y pueda entablar una petición a favor del individuo. Pero la posibilidad de pagar fianza, o la situación económica del individuo, no son factores que el juez considera.
Si el juez niega la fianza, el detenido puede pedir una audiencia posteriormente para mostrar que sus circunstancias han cambiado materialmente. Una moción por escrito explicando que ha cambiado, al igual que pruebas, deben ser entregadas a la Corte. Estas pruebas pueden consistir en mostrar que la detención se ha prolongado, que el detenido no debe ser deportado porque califica para algún beneficio migratorio, que los cargos criminales han sido descartados, o algún nuevo caso legal ha sido decidido que favorece al detenido.
Debido a que los jueces tienen amplia discreción, no es inusual escuchar que la fianza otorgada sea por una cantidad exorbitante. Por ley, la cantidad mínima que se puede requerir en fianza es de $1,500, pero no hay cantidad máxima. No hay datos completos sobre la cantidad promedio de una fianza, pero un reciente estudio de detenidos en el Distrito Centrale de California sugiere que la cantidad promedio es entre $10,667 a $80,500. Este mismo estudio encontró que detenidos con delitos mayores son otorgados fianzas de un promedio de $47,133, mientras que aquellos que no tienen delitos mayores reciben fianza en promedio de $20,040. Otra encuesta de 562 inmigrantes que fueron detenidos en el Sur de California por seis meses o mas encontró que la cantidad mediana de fianza fue de $15,000, “67% mas alta que la cantidad mediana de fianza ($9,000) por personas con delitos mayores en el sistema judicial estatal a nivel nacional entre 1990 al 2004”.
Se supone que los jueces deben hacer una determinación sobre la fianza de inmigración basada en toda la información disponible durante la audiencia. Pero si todo lo que el juez tiene frente a él es información sobre condenas penales o acusación de crimines, la probabilidad que una fianza sea otorgada o que la fianza sea razonable, es grandemente disminuida. Sin embargo, aun cuando los jueces tienen información adicional, el estudio sobre detenidos en el centro de California sugiere que los jueces le dan más importancia al historial delictivo, especialmente a cargos por delitos mayores, sobre otros factores relevantes.
La realidad es que el proceso de fianza puede ser complicado y los inmigrantes muchas veces no están representados por un abogado y no saben que solo tienen una oportunidad para pedir fianza. Un estudio nacional sobre el acceso a representación legal en corte de inmigración, encontró que de los 1.2 millones de casos de deportación decididos entre el 2007 y 2012, solo 37% tenían representación legal. Aquellos con representación legal se les otorgo una audiencia para determinar su custodia y fueron puestos en libertad siete veces mas que los que compadecieron ante un juez por si mismos.
Por lo tanto, si se supone que los jueces deben preocuparse no solo sobre si el inmigrante es un peligro para la sociedad, pero también sobre si existe algún riesgo que no regrese a corte, entonces proveerles representación legal en procesos de inmigración, incluyendo durante audiencias de fianza, tal vez puede aliviar esta preocupación.
Y si la mayoría de los inmigrantes no tienen antecedentes penales o tienen antecedentes por delitos menores o por violaciones de leyes migratorias (violaciones civiles y no criminales) entonces recibir representación legal puede proveerles una oportunidad más justa para presentar pruebas sobre por qué se les debe otorgar una fianza más razonable o ser puestos en libertad bajo otras condiciones.
En mi siguiente post examinaré las prácticas de algunas empresas de fianzas de inmigración que lucran de gran manera debido a la falta de uniformidad y protecciones dentro y fuera de las cortes de inmigración. También examinare el impacto social y económico que las fianzas exorbitantes tienen en los inmigrantes y sus familias.