When “Libre” does not mean Freedom

In my past posts I have identified several issues with the lack of safeguards in immigration bond proceedings. During the course of my research I called several bond companies and inquired about their services. In this post I want to explore what happens when immigration judges set bond amounts that are too high for families to afford and they are forced to contract with bond companies.

Immigration bond, if paid directly to ICE, needs to be paid in full. When bond is set at an amount that a detainee and their family cannot afford, they often contract with bond companies to get a “surety bond” – a promise that they will either pay the full amount or comply with other terms as set in the contract. Most companies require collateral, usually in the form of a house with enough equity, a credit card with enough credit to cover the full amount of the bond, cash, or a combination of these three assets. One of the bail bond agents I spoke with claimed that there is a 90% chance that if the bond is paid directly to ICE the bond will be “lost”; not refunded once the proceeding is over.

Most bond companies also charge a one-time premium, based on the total bond amount, usually between 15% to 20%. This premium is higher than the usual 10% in criminal cases; the reason given by bond companies is that the risk that immigrants will not show up to court is higher than in criminal cases. There may also be other processing fees. Some other bond companies require a non-refundable premium each year, usually 10%, until the case is closed. Since immigration proceedings can take years, immigrants and their families can end up paying thousands of dollars in fees alone.

The Religious Based Organization “Helping” Families Reunite:

But there is a new type of business that has emerged to service those who do not have property or other assets to use as collateral. The name is “Libre” by Nexus, a Virginia based company whose “GPS program” provides what they describe as a “critical service [that] guarantees the immigration bond, and uses the GPS to secure the bond” without requiring any collateral.

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Nexus runs several privately owned businesses offering financial help and legal support for immigrants detained nationwide. According to Nexus’s website, they have five offices in California, including one in San Francisco.

According to an article published in 2015, Nexus Services, which is the parent company of “Libre by Nexus”, was founded in 2008 as a non-profit that provided “GPS tracking ankle bracelets for criminal suspects” with the idea of reducing jail overcrowding. In 2013, it became a for-profit business, expanding to other areas, such as drug and alcohol treatment and monitoring programs, a property division that rents or sells homes and business spaces to their immigrant customers, and, more recently, Nexus Caridades, a non-profit providing free legal services to immigrants in detention and removal proceedings.

The GPS tracking program is the core of Nexus. But the fees and practices of this company have raised red flags and many are concerned about what they consider to be fraudulent practices by the company. Libre by Nexus’s website describes it not as a bail bond company, but as one that contracts with bail bond companies that actually post the immigration bond. Nexus claims to either pay the full amount of the bond to the bail bond company or place other property as collateral.

Nexus requires a “co-signer”, someone responsible for ensuring that the individual detained complies with ICE’s orders and shows up to court. This person does not have to be a Legal Permanent Resident or Citizen, which many immigrants may see as an advantage. It also requires two pictures, one of the individual detained and another of the place the individual will live once released, and a list of three references. Once the application has been approved, the families have to pay a one-time nonrefundable 20% premium, based upon the total amount of the bond, plus an $880 processing and installation fee for bonds over $5,000, also non-refundable. Nexus’s website claims that they do not keep any of that money, but one of Nexus’s agents told me that the 20% premium gets “divided”. She did not know how it gets divided, only that the fee was the equivalent of “interest” that the company keeps; it does not get paid to the actual bail bond company.

IMG_0965After the initial fee is paid then a GPS bracelet is placed on the immigrant as soon as he is released. After the first month, the families must pay a monthly non-refundable $420 rental fee for the GPS; the first month is “free”. The rental fee does not get applied to the bond amount. Once the individual is released there are two options, pay 80% of the bond at once and have the GPS removed, then pay the 20% remaining in monthly installments; or wear the GPS, pay the monthly rental fee, and anything additional gets applied to the bond balance. Once 80% of the bond has been paid, which could take several months or years, then the GPS will be removed and the immigrant will be responsible for monthly payments for the remaining 20%.

Another option is that once the immigrant gets released, but only after their release, they place a house or other property as collateral. The approval process takes one to three months, during which the GPS rental fee will continue to be paid. Regular bail bond companies accept collateral before paying the bond, but not Nexus.

So what is wrong with Libre by Nexus?

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Several clients of Nexus have come forward and complained about what they consider are the predatory practices of this company. Nexus responded by suing Byron Vazquez, Director of Casa de La Cultura de Guatemala, Los Angeles based non-profit.

In 2013, the office of the Commonwealth Attorney for the State of Virginia, (CWA) the Fairfax City Police Department, and ICE Homeland Security Investigation (HSI) – an agency in charge of criminal and civil investigations involving national security threats, identity fraud, benefit fraud, or commercial fraud – all began investigating the practices of Libre by Nexus. The investigation began after several attorneys complained about what they considered were Nexus’s fraudulent practices. But to this date no charges have been filed against Nexus or any of its agents. A few weeks ago, I was provided the opportunity to review hundreds of pages of documents obtained via the Freedom of Information Act which gave me a better insight into how Nexus operates, and, while I cannot share those documents at this moment, here is what I found.

Many clients of Nexus have come forward and complained about the company’s practices. Here is a list of some of these practices and the red flags they raise:

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Maria, a Guatemalan immigrant, shows the contract for her electronic monitor.  (Photo by Aurelia Ventura/La Opinion)
  1. Nexus’s contracts states that they agree “to track the defendant pursuant to the bond set in the client’s local case, which currently is docketed in the EOIR IMMIGRATION Court” (See page 5). However, if a judge does not condition the bond on any kind of GPS monitoring, how can Nexus make the claim they are monitoring pursuant to conditions set by the Court?
  2. While Nexus does not make this express claim in writing, its agents have visited prospective clients in detention and have told them that they need, or that ICE or the immigration judge requires them, to contract with Nexus in order to “get out”. But ICE claims, and Nexus acknowledges in writing, that they are not affiliated with ICE or any other government agency and that they do not make release decisions (Page 5). However, there is a certain element of coercion when ordained ministers, employed by Nexus, visit desperate detainees and tell them that their only hope at getting out is Nexus.
  3. Attorneys have reported that judges have required their clients to comply with Nexus’s Programs. In at least one case, an immigration judge in Arlington conditioned, in writing, that a detainee be released on a $20,000 bond and comply with the Nexus program. As I wrote in my last post, judges have great discretion, but they also have the duty to be “Impartial” –“An Immigration Judge shall act impartially and shall not give preferential treatment to any organization or individual when adjudicating the merits of a particular case.” (5 C.F.R. § 2635.101(b)(8)). To be clear, immigration judges can set a condition that a detainee wear a GPS device in order to be released, or set other “terms of release” (8 C.F.R. § 1236.1(d)(1)), but they have to do it through a government sponsor program. For instance, GEO’s Intensive Supervision Appearance Program (ISAP) is an alternative to detention program that provides GPS monitoring for the Department of Homeland Security. Nexus, as far as I can tell, does not have a contract with ICE the same way the GEO group does. While judges may not be violating the law, at the very least one can argue that they are abusing their discretion by failing to remain impartial and ordering compliance with a non-governmental program. See 5 C.F.R. § 2635.101(b)(8).
  4. When clients have complained about the GPS or the fees, Nexus agents have told them that if they remove the GPS then the judge will revoke the bond. Now, this is not correct, at least not in theory. If the judge does not release an individual on the condition that he wears a Nexus GPS (which the judge should not do; see (5 F.R. § 2635.101(b)(8)) then neither the judge nor ICE should be able to revoke the bond. However, Nexus can ask the bail bond company to contact ICE’s Enforcement and Removal Operations (ERO) and ask them to take the immigrant back for not complying with the bond requirements. Most officers comply with these requests. A bail bond company can always revoke bail and ICE can take the immigrant back into custody. But in this case, the immigrant contracts directly with Nexus and not with a bail bond company. However, Nexus has found a way to use ICE to essentially “enforce” their contract by having the bond company make the request with ERO. It is not clear what the bail bond companies get out of this or what the actual financial arrangement is between them and Nexus. Even if this is not illegal, it raises a lot of concerns and leaves a lot of room for abuse.
  5. Traditional Bail Bond Companies, such as Freedom Bail Bonds, have promoted Nexus as a program that can help get immigrants out of detention. In some cases, bail bond companies that work with Nexus have charged clients an initial 15% premium to post the bond and have then referred clients to Nexus to have a bracelet placed on them. This means that if an immigrant has an $18,000 bond, he will pay $2,250 to the bail bond company and $3,130 to Nexus. But this makes no sense. If an individual can contract with a bail bond company directly then it is likely because that person can provide collateral, so there is no need to secure the bond through a Nexus GPS. It is not clear whether bail bond companies receive any payment or commission from Nexus, but if they do then they have found a way to make even more money off unsuspecting and desperate clients.
  6. In certain cases, where clients were granted bond and were ordered to enroll in an Alternative to Detention (ATD) Program as a condition for release – meaning they had to wear a GPS device provided by BI Monitoring Operation (owned by the GEO Group) — they were told by Nexus that they also had to wear a second GPS provided by them. The issue is that they were never provided a GPS from Nexus, but they still had to pay $320 a month, after a $100 “discount” for already having an ISAP GPS. If Nexus’ claim that “ICE does not share supervision information with Nexus and Nexus does not share supervision information with ICE” is true, how could Nexus charge for monitoring that was only done by ICE if Nexus and ICE were in fact not sharing information? But more importantly, how is it that none of the agencies that “investigated” Nexus in 2013 brought charges against the company? Several incident reports were filed in Fairfax County alone, yet the Virginia Commonwealth Attorney refused to file charges unless the GPS devices were “not functioning”. But, in some cases this element couldn’t be established simply because these clients were never provided with a GPS device.
  7. Nexus charges an initial nonrefundable assessment fee, usually $600 (Page 5). The fee is waived upon release and credited to the first month lease and activation fee, so when Nexus says that the first month is ‘free’ it really isn’t. If the detainee is not released, then Nexus makes their “report(s)” available for presentation at Immigration Bond hearings. In other words, they act as a private pre-trial services type of agency, draft a report and hand it over to the immigrant’s family, who many times are convinced this report will help secure the release of their loved one. But Nexus does not play a role in release determinations, as far as I can tell, and I could not find a copy of the type of report Nexus provides the families or the court.
  8. Nexus has encouraged clients to fire their attorneys and hire Nexus recommended attorneys. The company recently expanded Nexus Caridades, a non-profit providing free legal services for those who qualify. While not illegal, this raises even more red flags. One can see how this may create conflicts of interest. Clients of Nexus have complained about the payments, the bracelet, and the service to their attorneys, and in some cases attorneys have removed the GPS devices and marched into Nexus’s office to return the device and inform them that the client will no longer make the payments. I could not find any evidence that Nexus has retaliated against those who are represented by private counsel. But what happens if the client is represented by one of Nexus’s attorneys? Would they do the same? Would they contact the attorney general when their clients are paying for a device they never received? I think the answer is obvious.
  9. If an immigrant gets released and decides to post a house as collateral, they must provide Nexus with a copy of the deed, the mortgage and an appraisal. During the period the proceedings last, the house “belongs” to Nexus. If anything happens and the immigrant who was bonded out by Nexus fails to show up to court, Nexus will not enforce a lien on the house for the bond amount alone, as most bond companies would. Instead Nexus takes the whole house, as explained by one of its agents. When I tried to clarify this point, and reminded her that I was inquiring about a $15,000 bond, I was told this was correct, they take the whole house as compensation for the “risk” they were undertaking and because they have to pay the full amount of the bond to the bond company.

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So what can we do?

Under Virginia law, the Commonwealth Attorney General did not think that any of what I just described constituted fraud. However under California law, “actual fraud” consists of “the suggestion, as a fact, of that which is not true, by one who does not believe it to be true [and] a promise made without any intention of performing it” and “undue influence” is described as “suggestion, as a fact, of that which is not true, by one who does not believe it to be true,” (§§ 1172, 1175). So take for instance, telling a desperate detainee or his family that unless they contract with Nexus their loved one will stay in detention—this is not true and Nexus knows that; or telling them that not complying with Nexus will cause the judge to revoke the bond.

But some will say, “the client should’ve just read the contract”. The contract is in English, but a lot of people who contract with Nexus are recently arrived immigrants who do not speak English. Under California Law, as amended in 2014, Cal. Civ. Code §1812.623(a) seems to apply to the kind of GPS tracking devices used by Nexus, or at least one can argue it should. If that is so, then Nexus, when doing business in California, must provide a written agreement “in the same language as principally used in any oral sales presentation or negotiations leading to the execution of the agreement.” The languages include, because of the demographics in California, Spanish, Chinese, Tagalog, Vietnamese, and Korean. The copies of Nexus contracts I was able to obtain include one single page in Spanish, out of thirty-three pages (Page 6). The quality of translation is terrible to say the least; it looks as if someone used Google translate to try to translate the English version. I am a fluent Spanish speaker and I could not decipher half of what was written in the “Spanish” version. Under California law, a consumer is entitled to remedies, including actual damages; consumer’s reasonable attorney’s fees and court costs; and exemplary damages, in the amount the court deems proper. Cal. Civ. Code §1812.636(a)

If Nexus isn’t committing fraud, they are definitely walking a very thin line. I would be surprised if they could sustain these practices, although the reality is that Nexus found the perfect community to defraud. A lot of immigrants are afraid to come forward, and even when they do, no one seems to do anything, at least not in Virginia.

 

 

 

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.

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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.

 

 

 

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.

Van Atta v. Scott: Why the Supreme Court Could Not Solve the Problem

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,[1] 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.

 

[1] This is a very unlikely scenario, but illustrative nonetheless.

Some Light at the End of the Judge’s Tunnel

The problems regarding judges and bail have been discussed in my previous posts. Although the issues are real and, in some ways, disheartening, there are some possible solutions to the problem.

Since California Superior Court Judges compete in nonpartisan races, citizens can vote and have an effect on the judges serving their county. Nonpartisan races for judges are held every June and November of even numbered years. Many judges are appointed by the governor instead of via a nonpartisan election; however, those terms have limits and judges must participate in an election in order to keep their judicial seats. Superior Court (trial court) judges serve staggered six-year terms. Every two years a third of the superior court judges are up for re-election. Continue reading “Some Light at the End of the Judge’s Tunnel”

Immigration Bond: Making Freedom an Expensive Commodity for Some Immigrants

 

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.”

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Kimberly Pineda-Chavez was 17 when she fled Honduras to escape gangs that threatened to make her and her sister their “sex slaves”. The sisters were apprehended at the border and Kimberly was ordered deported 3 months later. She was detained by ICE and after more than 25,000 petition signatures Kimberly was granted bond and released.

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.

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Lundy Khoy, a green-card holder born in a Thai refugee camp after her parents fled Cambodia, was a student at George Mason University when she was caught by the police with a handful of ecstasy tabs. She served 3 months in jail and received 4 years of probation. In 2004, ICE showed up to one of her scheduled probation check-ins, detained her and imprisoned her for another 9 months.

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.

Moreover, some immigrants are subject to mandatory detention. In 1996, Congress significantly expanded the categories of individuals who are subject to mandatory detention to include immigrants convicted of essentially any crime, not only aggravated felonies and crimes of moral turpitude (PDF page 8). Because of the topic of this post, I will focus on those who are eligible for 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?

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Immigration Judges are not Article II judges. They are “attorneys whom the Attorney General appoints as administrative judges”, and who exercise their own independent judgement and discretion in deciding a case.

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.

 

 

Slamming Down the Gavel on Judges and Bail

My last post discussed formal requirements that judges are required to use when setting bail for defendants in California. As in many other areas of the law, what you are supposed to do and what actually happens in practice often deviate.

Bail is set by the bail schedule and then a judge can adjust the bail amount. Because the bail schedule is determined by the statutory offense and not the facts of each individual case, judges should not solely rely on the bail schedule when making determinations. Judges have a wide range of factors they can look at when setting bail that I have previously discussed (community ties, risk to society, etc.). Much of the individual information is in PTS and police reports, which judges can review at arraignment. Additionally, during arraignment, defense and prosecution can raise specific arguments or facts not contained in those reports. Finally the judge can, and often does, ask specific questions of the defendant, the counsel, and others present. (See PTS in custody arraignment process.) Continue reading “Slamming Down the Gavel on Judges and Bail”