The Impact of Broad Discretion in Setting Immigration Bond

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.

a-immigrantcourtThe 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
An immigration judge has set Samey’s bond at $25,000. RAICES, a non-profit in San Antonio, TX has created the “Free Samey Fund” to raise money to free Same once and for all.

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.

 

 

 

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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.

 

 

 

Why accepting credit cards for bail won’t help poor individuals secure pre-trial release.

One of the recommendations made by the Santa Clara County Bail Working Group is to accept credit cards or debit cards at county jail facilities. [Revised Bail and Release Report, Page 10].  Defendants with access to a credit card will be able to avoid using commercial bail bond agencies altogether. This would allow individuals who are arrested on non-felony charges to post their bail using their own funds with more ease.[1]  While this provides an alternative to commercial bail bond companies, it may not be what is best for every defendant.

Before moving forward, I would like to point out that, under the proposal from the Bail Working Group, this form of payment would only be available to individuals arrested for misdemeanor conduct who are entitled to own recognizance release.  This means they should not have to pay anything unless the court makes a finding on the record that money bail should be imposed for public safety reasons or to ensure his or her appearance in court.  This post will address what an individual should consider before using a credit card, assuming that they are not eligible for own recognizance release.  If an individual does not have the access to the funds in their account and has a credit card, they would have the choice of using that credit card to pay the entire amount or using the services of a commercial bail bond company.

Some of the considerations a defendant should make before using a credit card to pay their bail are:  the interest rate of their credit card; the amount of time before they get that money back; and the fact that they may not receive the entire amount paid at the conclusion of their case.

While using a credit card may be the better option in some cases, paying 10% to a bail bondsman may be the better option for others.  After weighing these considerations, a defendant may find that using a commercial bail bond company to secure release prior to trial is a better option in some instances.  I do not address bail forfeiture (i.e. the process of losing your bail deposit when a person fails to appear in court).  I will be addressing the above-mentioned issues based on the assumption that the individual makes all of their court appearances. Continue reading “Why accepting credit cards for bail won’t help poor individuals secure pre-trial release.”

Privatization of Money Bail

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”

Lose your job or lose your freedom?

Imagine that you were arrested on an alleged misdemeanor offense and the court has allowed your release from custody on a promise to appear (own-recognizance) to your scheduled court date. You work full-time, are the primary or only breadwinner of your family, and you live on a low-wage paycheck-to-paycheck basis. You’ve told your boss in advance that you have a mandatory court proceeding to attend and, based on that conversation, you now fear that your boss will fire you if you miss that day of work to attend court. As the day of your court hearing approaches, you must make a critical decision between attending court or attending work. No matter which one you choose, the consequences for not choosing the other are grave; if you miss work you will potentially get fired and struggle with meeting basic life necessities for you and your family, if you miss court an arrest warrant will likely be issued against you along with additional charges pursuant to your failure to appear (FTA).

The Problem

There is no empirical data in California that demonstrates how often individuals fail to appear as a result of fearing employer retaliations. There is also no empirical data to show how often individuals are terminated after they have missed work to attend a court hearing. This data may be difficult to obtain for two reasons: first, employer motives are challenging to track, and second, there is the possibility that employees do not tell their employers about their court dates for a variety of reasons.

A survey in Nebraska of about 8,000 misdemeanants from different counties found that “the highest-rated reasons for non-appearance reflect very practical, instrumental factors (e.g., “had scheduling [or work] conflicts.”) (pdf, go to page 24). The Bail and Release Work Group of Santa Clara County stated that individuals miss court appearances “for many reasons unrelated to a desire to avoid justice—including inability to miss work” (pdf, go to page 20). From both my personal observations in court and my interviews with professionals in the criminal justice system in Santa Clara County, it appears common for defendants to miss their court date out of fear that they will lose their job for missing work. (Class/personal interview with Public Defender Ms. Panteha Saban, 4/13/16. Email interview with pretrial service agent, 4/15/16.) So what if there was legal protection that would prohibit an employer from retaliating against an individual who gave advance notice and missed work in order to attend a mandatory criminal court proceeding? Continue reading “Lose your job or lose your freedom?”

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

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

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

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

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

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