The Problem of Wicked Wednesday

From the beginning of our exploration of bail policy in Santa Clara County, the question of Wicked Wednesday has loomed large. Wednesday is by far the heaviest day for arraignments in the county, which is why it has earned the nickname. The reason for this requires some explanation.

Arraignment is typically the first time a defendant appears in court. At this time, he or she will be formally charged and may enter a plea. Bail will also be set or modified. California Penal Code section 825 requires that arraignment take place within 48 hours of arrest. There is a catch, however. That 48-hour window excludes Sundays and court holidays. Therefore, if an individual is arrested on a Friday or Saturday, the clock does not begin ticking until Monday, meaning that he won’t appear for arraignment until the following Wednesday.

A public defender previously assigned to arraignments estimated that she routinely handled twice as many cases on Wednesdays as she did on any other day of the week. This makes sense when you consider that people arrested on Friday, Saturday and Sunday will all be arraigned on Wednesday.

 

The Question of Probable Cause

The term “probable cause” is used a number of times throughout criminal cases. For instance, when a person is arrested without a warrant, the arresting officer must have probable cause for the arrest to have taken place. This means the officer must have had a reasonable belief that the person was engaging in criminal activity. Probable cause can be based on the officer’s observation of activity that violates some law, such as driving a vehicle with defective equipment or failing to stop at a stop sign. It can also be based on the officer’s observation of suspicious behavior. A police officer is authorized to make a probable cause determination at the time of arrest.

Probable cause is also a factor in California felony cases that go to trial. Before the trial begins, a preliminary hearing is held. This is sometimes called a probable cause hearing. At this hearing, both the District Attorney and defense counsel are able to present evidence, call witnesses and question them before the judge. The judge will decide based on the evidence presented whether there is probable cause to proceed with a trial on the charges. Because some of the charges may be modified or dropped, a new criminal complaint called an information is filed by the prosecutor. The defendant is then arraigned for the second time, this time on the charges in the information. After that, the trial will be held. Continue reading “The Problem of Wicked Wednesday”

Rewriting Inequity: Policy Recommendations for CA PC 1305

So far this semester, I have written about the text of California Penal Code Section 1305. Most of that time has been taken up with discussing the problems with bail forfeiture and exoneration that arise from the way the law is written and implemented. In this final installment, I will address two problems I have raised over the last two posts: (1) affordability of bail and the bail schedule; and (2) amending PC 1305 so that it does not favor bail bond companies. By way of solutions to those problems, I will offer some policy recommendations for the California bail framework as we move into a time where the state-level bail system is getting some much-needed attention from criminal justice reformers.

Bail has come to mean a lot of different things. However, at its base, bail is simply the mechanism by which we attempt to guarantee the defendant comes to his or her court dates, while, at the same time, maximizing public safety and minimizing restraints on a defendant’s liberty. Since money bail is not working toward these intended purposes, it is time we get rid of it. There are other forms of pretrial release that do a much better job of getting the defendant to come to court when he or she is supposed to, and enable real criminal justice professionals to keep track of the defendant.

In general, the best way to fix the bail system in California is to abolish money bail in favor of a combination of preventive detention and pretrial release with supervision (first paragraph of page) similar to the structures in place in Washington, D.C. and New Jersey. However, that would require a complete overhaul of judges, jails, and a thriving quasi-insurance industry (bail bond companies). Since that is both unlikely to take root quickly and outside of the topics I have addressed so far, this post will focus on possible policy solutions and recommendations for PC 1305 specifically.

No One Can Afford the Better Option: Cash Bail and the Bail Schedule

Cash bail – as compared to commercial surety bail, or bail bonds – is always reserved as an option for defendants, but it is rarely taken. Few defendants can afford to deposit the full bail amount with the court, because the scheduled bail amounts are so high. This is especially true in the case of individuals who are accused of misdemeanors, where bail is most often set according to the bail schedule, usually between $1,000 and $10,000.

If the system is meant to ensure the defendant comes to trial – which it is – then the amounts should be high enough to matter, but should still take into account (1) the defendant’s ability to pay, along with (2) potential risks to the public’s safety if that person gets out. With those as the two chief considerations in setting bail, judges can tailor bail amounts to individual defendants enough to be effective, while not inflicting prison time upon them for their lack of assets. Conversely, the rich will no longer have access to freedom while the poor do not. Today, so long as the person has not been charged with a capital offense, for which there would be no bail, rich defendants can get out of jail almost immediately by buying a bail bond, regardless of how dangerous they are to the public.

As the Santa Clara County website says, “[t]he Bail Schedule is the presumptive bail in many, but not all statutory offenses.” Judges are permitted to depart from the bail schedule but almost never do, since they really have no reason to do so. It’s already been agreed to by a majority of the judges in the county, so it comes prepared with a stamp of approval. However, judges can and should take advantage of that discretion in setting bail to alleviate foundational problems ranging from jail overcrowding to the simple fact that pretrial detention only affects people negatively (PDF page 3-4), especially low-risk defendants. That is, keeping people in jail, discerning which defendants are not a public safety risk and will most likely come back for their court dates can be, and has been, accurately done. At the very least, if money bail has to continue being part of our criminal justice system, then defendants that we can safely let out should be able to get out of jail.

Get Rid of the Bail Schedule

Getting rid of the Bail Schedule altogether is the most efficient way to discern which defendants are either flight risks or dangerous, so that judges have to make individualized determinations, and will hopefully choose to take advantage of risk assessment tools. One logical counterargument to that point is that judges just don’t have the time to consider each defendant’s unique circumstances, so the Bail Schedule is simply a creature of convenience that helps the criminal justice system run smoothly. The obvious response is that we are dealing with a person’s freedom, as well as their future. The Bail Schedule lets judges use it as a default, since it is the “presumptive bail,” but the standard amounts are too high for many defendants. Thus, adherence to the Bail Schedule results in unnecessary pretrial detention. Any jail time is bad, but unnecessary jail time is considerably worse. As an Arnold Foundation study found, “low-risk defendants who were detained pretrial for more than 24 hours were more likely to commit new crimes not only while their cases are pending, but also years later” (PDF, page 4: “The Hidden Costs of Pretrial Detention”). Clearly, we hope that criminal justice is both making society safer and better generally – part of which is lowering crime.

If jail time is causing an increase in crime, then the criminal justice system – legislators, judges, and prosecutors – should concentrate on alternatives to jail time. As an added benefit, jails will become less crowded and, hopefully, get back on track by inflicting pretrial detention only on the people who cannot be freed safely. Additionally, the county will save money. It costs the county, and therefore taxpayers, $204 per day for a single inmate (PDF, page 22) to stay in Santa Clara’s Main Jail pretrial. The cost of pretrial supervision – for those defendants who require supervision – is estimated at $15 per day (PDF, page 22). Some defendants don’t even need to be supervised.

If the argument for the Bail Schedule is convenience, and replacing that convenience for a different kind of convenience could bring about all of the positive effects above, then it seems like a worthwhile trade. Now I’ll turn to a discussion of how to remedy some of the problems with PC 1305 from the legislative side.

Rewriting PC 1305

Throughout my posts in the last couple of months, and most of the other posts on this blog, there are a few common threads, one of which is: bail bond companies are getting off too easy. One of the many reasons that is true is that PC 1305 is written in a way that favors bail bond companies, so the entire process – from getting a defendant out of jail to when they go to trial, or don’t – is written to give bail bond companies as many chances as possible to make money and dodge liability.

Stop Construing PC 1305 “in Favor of the Surety”

One of the most glaring problems with the way PC 1305 functions is that courts are actually required to construe the law in bail bond companies’ favor. As far back as 1975, in a case called People v. Wilshire Insurance Company, and as recently as 2015, in People v. United States Fire Insurance Company, courts have insisted on statements such as “[t]he Penal Code sections governing forfeiture of bail bonds must be strictly construed in favor of the surety to avoid the harsh results of forfeiture.” In People v. US Fire Insurance Company, the court explained further that, “strict construction of bail forfeiture statutes compels the court to protect the surety.” Even if the law were not written in favor of bail bond companies, it would still be treated as if it was. Why?

One explanation is that “the law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail.” People v. American Contractors Indemnity Co. However, bail bond companies are not traditional companies – they are little insurance companies who are guarded by huge insurance companies, which end up playing a critical role in the criminal justice system, in pursuit of profit. Because judges often – if not always – rely on the Bail Schedule, bail agents end up making the determination of which defendants get out of jail and which defendants stay in custody without regard for public safety. Their motivation is profit, so the defendants who get out are the ones who can pay for it, and who have high enough bail set to be profitable.

Bail bond companies and their agents should have higher risk of forfeiting their potential monetary gain, because they are responsible for both keeping the public safe by not letting out dangerous criminals, and getting those out who should be out, and then ensuring they go to trial. The stakes are much higher than for, say, car insurance, where the risk and reward are purely financial. In the bail context, the bond companies’ risks are financial, but the same risk for an individual is his or her liberty, which should hold a much higher price.

185 Days is Too Long

When a defendant fails to appear, the bond company has 185 days to find them and bring them back before the bond company loses any money. They can also attempt to extend that period by 180 days if they file a motion with the court pursuant to 1305.4. Bail bond companies exist to get people out of jail pretrial, with the promise to bring them back for trial. If any other person (or entity) in any other kind of job failed to do the single thing they were supposed to, it would be crazy to give them either 6 months or a year to finish the task they were supposed to have done in the first place, and then pay them for it.

Bail bond companies need to keep better track of defendants so that they don’t fail to appear. If a bonded defendant does fail to appear, the bail bond company should not still make money. Thus, the bond should be actually forfeited when the defendant fails to appear. Or, at least, whatever the bond company got from the defendant should go to the court. To bring it full circle, allowing defendants to give a deposit to the court in cash, the same way they would pay a bail bondsman, would solve this whole problem. Then the defendant has a reason to come to court, and no one makes money for being terrible at his or her job.

Rearrest Should Not Equal Exoneration

When a defendant is out on bond and is rearrested, the bond is exonerated and the surety is freed of all obligations. Bail bond companies purport to protect public safety. However, almost 30% of people in Santa Clara County that bail bondsmen bail out of jail are rearrested. When a bail bond company bails out a defendant who is likely to commit another crime, it endangers the public. Thus, when a defendant commits a crime while out on bond, as more than a quarter of Santa Clara defendants post bond do, the bail bond company should forfeit either the entire bond or at least the portion they charged the defendant.

Conclusion:

There are many problems with PC 1305, but there are also many open avenues for solutions. Reform can come from judges by using discretion in setting bail, so that defendants get individualized assessments, even if it means that they see fewer defendants per day. The legislature should carefully consider the effects of PC 1305 according to the above critiques, to make sure the statute is bringing about its intention; not just benefitting huge companies making a safe investment in someone’s freedom, or incarceration. Finally, prosecutors can mitigate some of the damage 1305 does by not asking for higher bail or defaulting to the bail schedule in cases where ability to pay is a factor, and by giving more credence to tools-based risk assessments used by Pretrial Services.

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?”

The Decriminalization of Mental Illness in America

As a society, Americans have effectively criminalized mental illness. Our jails and prisons are filled with mentally ill individuals. 50% of prison and jail inmates in California have mental health impairments. But change may be approaching. More attention is being focused on this issue and Americans are starting to question the current criminal justice system. Some communities have begun taking action to remedy this societal catastrophe. There may be hope that soon we, as a country, may no longer be known as incarceration nation.

This post will discuss possible solutions to reduce the number of incarcerated mentally ill individuals. I will review new, pertinent legislation proposed in California and programs set up in other states that attempt to change the current status quo of the criminalization of mental illness. As discussed in my previous post, Santa Clara County is currently attempting to remedy the criminalization of mental illness in our community by spending $74 million on expanding its mental health unit in jail. But expanding the jail’s mental health unit does not provide a complete solution to the problem. Providing mental health treatment in jail is not as cost efficient or effective as outside treatment and may not be necessary. Many mentally ill individuals who are incarcerated commit low-level misdemeanor offenses such as trespassing, drug crimes, public urination, public intoxication, and aggressive manhandling. Research shows that if these individuals are provided support and treatment, they are much less likely to recidivate compared to when these individuals are incarcerated. We as a community must chose whether we want to lock up mentally ill offenders or care for them. The former perpetuates recidivism and chaos; the latter is more cost effective and humane. Continue reading “The Decriminalization of Mental Illness in America”

Will Dollars Bring the Right Change to Santa Clara Jail?

Main-Jail1-772x350-2Santa Clara County reports 50% of its jail inmates have mental health issues (see Augmentation of Behavioral Health Services to Inmates in County Jail, p. 2). The news reveals that Santa Clara County has a major problem effectively and humanely handling these individuals. This begs the question: how exactly are mentally ill individuals treated in the Santa Clara criminal justice system? This post attempts to point out specific areas during pretrial detention where the system in our county fails mentally ill inmates, effectively punishing them before conviction and thereby exacerbating their mental illnesses and increasing their chances of re-entering the criminal justice system after release. Continue reading “Will Dollars Bring the Right Change to Santa Clara Jail?”

Can Jail be Non-Punitive?

In the eyes of the law, pretrial detention is not punishment. In Bell v. Wolfish, the Supreme Court of the United States held that pretrial detention is supposed to be “non-punitive.” That is, pretrial detention is not supposed to inflict, or constitute, punishment. The case involved a challenge to the conditions of confinement in a federal jail in New York. The Court determined conditions that amount to punishment violate a pretrial detainee’s due process rights. Pretrial detainees cannot be punished because they have not yet been convicted of a crime.

Ask yourself: “Would I consider spending time in jail to be punishment?” My guess is that the vast majority of people would agree that spending any amount of time in jail is punishment, regardless of the conditions. The horrific conditions of the prison system are well known, given prisons’ prevalent depiction in movies and pop culture, yet jails are just as bad, or in some cases worse. Typically, jails are short term, locally-operated facilities that hold inmates awaiting trial or sentencing and inmates sentenced to one year or less, while prisons are long-term facilities run by the state or federal government and hold inmates with sentences of more than one year. Pretrial detainees, who are presumed innocent, may be subjected to worse conditions than many of the most hardened criminals because they are housed in jails. One individual who was spending time in a county jail facility noted, “I would have preferred to go to prison” because “their medical facilities are better, their food is better – everything is better. They have TV, radio, yards.” As a member of the Santa Clara jail commission put it, “when you find yourself hearing ‘Gee, I wish my son was at San Quentin,’ that sure is an indictment of our jails.”

Now consider the fact that pretrial detainees are subject to the same conditions as those who have been convicted. Continue reading “Can Jail be Non-Punitive?”