The Impact of Broad Discretion in Setting Immigration Bond

In my last post, I talked about the lack of regulations in setting immigration bond and the great disparity in the amount of bond granted. A couple of weeks ago I had the chance to witness a few immigration bond hearings in San Francisco. Each hearing was different, and each had a different result.

a-immigrantcourtThe Immigration Judge granted bond in only one case, setting it at $10,000, and ordered only one release without bond. Both of these individuals had legal representation. The first one had been arrested for disorderly conduct, a misdemeanor. The second one was a Franco case, meaning that the individual was someone with a mental disability. In 2013, Franco-Gonzalez v. Holder resulted in an injunction requiring the government to appoint counsel and provide bond hearings for seriously mentally ill noncitizens detained in Arizona, California and Washington. This explains why, even though an interpreter was present, the judge did not question the man in a red jumpsuit sitting in court quietly and absent-mindedly. All questions and instructions were directed at his “qualified representative”, an attorney from a local non-profit organization who successfully argued that her client did not represent a danger to the community and that he would not be able to pay even the minimum amount of bond ($1,500).

I also witnessed several Rodriguez bond hearings, also known as custody determination hearings, for non-citizens who had been detained for six months or longer. For the first two Rodriguez bond cases, the attorneys simply asked for a continuance. To my surprise, the judge warned the two attorneys that in his experience, unless a stay (a temporary postponement of an order of removal) had been granted it would not be surprising if the non-citizens were removed before the next hearing. This is because in immigration court an appeal does not carry an automatic stay, nor does a Rodriguez bond hearing.

The other three individuals seeking Rodriguez bond were unrepresented and all appeared via video teleconferencing (VTC). The first one asked for more time to find an attorney. The next was a 26-year-old immigrant from Honduras who had been previously deported. He spoke English fluently and asked the judge to grant his release so he could go back to work as a cook and provide for his 3-year-old son and his family. The judge asked if he owned any property or had any savings; the young man replied that he only had $3,000. The judge denied bond, citing a “serious” flight risk because did not have family ties in the U.S. To be honest, I thought that if the judge was to deny bond it would be because in an effort to be honest, as this young man put it, he also said that he had been detained for a DUI previously and that ICE believed him to have had gang affiliation when he was a minor, which he vehemently denied. It seems that the judge did not think he was a danger, but still denied the bond despite the fact that this man’s whole family lives in the U.S., including his Legal Permanent Resident (LPR) mother, who had already filed a petition seeking permanent residence status for him as well.

The last hearing I sat through was for a homeless veteran, a legal permanent resident and former Marine. After being asked if he needed more time to find an attorney he told the judge he had written to several non-profits seeking legal representation but had not heard back from any of them. He told the judge he wanted to represent himself because he was having a “really hard time” being detained and wanted a chance to explain how he believed he is a citizen. He had taken a citizenship class and filed paperwork to become a citizen in 1991, while he was still on active duty. When the judge asked if he had any proof he replied that he had been homeless for the past six years and did not keep any documents. He also said he suffers from serious Post Traumatic Stress Disorder (PTSD), and was having a very difficult time coping with being detained. The judge denied bond.

After the hearings concluded I asked the judge about how lack of representation affects a case, and he insisted that it does not affect the ultimate outcome of bond hearings. But although I only sat through a handful of hearings, only two individuals were ordered released – one on bond and other with certain conditions – and both were represented. As I wrote in my last post, judges do not have to consider ability to pay, so I had to ask the judge about his reason for asking about the individual’s assets in one of the cases; he said that he did this in order to set bond at an amount that represents more than just a fraction of the individual’s assets and thus have stronger assurance that the individual will continue to appear in court.

Lastly, I asked about the effects of the Rodriguez ruling and whether more bonds were being granted now that more individuals were eligible for these hearings. The judge said that in his experience 99.9% of Rodriguez bonds were denied, as judges still had to decide whether the individual is a danger to the community or a flight risk. This is consistent with what I saw; not a single Rodriguez bond was granted that morning. However, this should not be interpreted as non-citizens being denied because they are an actual danger to the community.

Bond and Refugees:

If there is one group that has felt the harsh consequences of the lack of safeguards in immigration bond proceedings, including immigration bond, it is refugees, especially Central American mothers and children fleeing unimaginable violence in their home countries. After making a grueling journey though several countries, risking being raped, assaulted, and even killed, when they finally get to the border seeking asylum they are quickly detained and sent to “family” detention centers, such as Karnes, in South Texas. Karnes is run by the GEO Group, a private correctional detention company and was recently granted a temporary “residential child care license”, a move to circumvent an order from the Federal District Court for the Central District of California, which last August gave the Obama administration two months to release refugee children held in these unlicensed facilities. It is too soon to know the actual effect, but at the very least this means that the Obama administration can now continue to detain women and children indefinitely. Before last year’s Court order to release children from these detention facilities was issued, families had many complaints, including sexual abuse of women, lack of proper medical care for children, and bonds being set as high as $20,000.

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

Samey, a former interpreter for the U.S. and NATO forces in Afghanistan, who fled to seek asylum in the U.S. after being threatened by the Taliban has been detained for nearly a year. During Samey’s hearing before the judge, retired Lieutenant Colonel Mike Williams testified on his behalf and urged that Samey be granted asylum. Everyone thought that this was a “fairly open-and shut-case”; instead, the judge denied asylum and ordered Samey’s deportation. Samey did not have legal counsel. However, Samey was recently given a $25,000 bond, something he simply cannot afford. This high bond was set despite Samey not having a criminal record or presenting any danger to the community; he actually has family members who have been granted asylum on the same grounds, and even presented testimony by a former lieutenant colonel.

The Economic and Social Impact of Detention:

When a judge does grant bond, the person who pays the bond needs to have legal status, and in some cases has to be a family member. When immigrants cannot afford bond, it could lead to prolonged separation from their family and loss of social and economic support. The economic impact of detention could be measured in two ways – the cost incurred by the government when detaining immigrants for prolonged periods of time and the cost to the immigrants in the form of wages loss.

A survey of 562 immigrants detained in Southern California for six months or longer found that “approximately 90 percent were employed in the six months prior to detention.” The survey then calculated the collective lost wages due to detention to be nearly $11.9 million (or $43,357 per day). On the other hand, the government spent nearly $24.8 million dollars to detain these immigrants for an average of 274 days, with a daily cost of $161 dollars per detainee per day.

Sixty nine percent of the 562 surveyed immigrants had a U.S. Citizen or Legal Permanent resident spouse or child. About 94% were a source of financial or emotional support for their families, and 64% of these immigrants’ families had difficulty paying rent, mortgage or utility bills. In addition, 42% of families were unable to pay for necessary medical care and 37% could not pay for food. The lack of data makes it difficult to determine how many immigrants sitting in detention for prolonged periods of time are there simply because they cannot afford to post bond.

When bond is set at an amount a detainee and their family cannot afford, many are forced to contract with bond companies. Most companies require collateral, in the form of property or other assets, and they charge a non-refundable premium each year until the case is closed. This means non-citizens end up paying more than the actual bond amount and the collateral is not released until the end of the proceedings, which can take several years.

There is a new type of business that has emerged to service those who do not have property to use as collateral. The name of this company is “Libre” by Nexus. In my next post I will explain how “Libre” works and why customers are complaining.

 

 

 

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”

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

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

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

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

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

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

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?”

Money Can buy you Happiness in Jail

As I have previously discussed, the criminal justice system has become an avenue for the government to make money. We are seeing an influx of cities, counties, and states using criminal charges as a basis for monetary charges assed in exchange for someone’s physical freedom during pretrial, to charge for basic needs while in custody, and to charge for post-sentencing court-imposed requirements. My previous post focused on pretrial release fines and fees and my next post will hone in on the fines and fees related to diversion programs and post-sentencing release, which means this post will illustrate fines and fees imposed while in custody.

A defendant may be in custody at any time once she is arrested for a crime. She may be in custody both pending and during trial because she was ineligible for release (either by statute, a judge’s discretion, or because she did not have the means to pay for her release), or she may be in custody as part of her sentencing. Typically, a person in jail, opposed to prison, is there either pretrial or during trial but pre-conviction; awaiting sentencing and/or transfer to another facility; or serving a relatively short sentence, usually a term less than one year. Prisons are long-term holding facilities that typically house individuals who were convicted of a felony and sentenced to serve more than one year. This post will include fines and fees imposed and collected in both jails and prisons. 

Pay to Stay

The in-custody fee that tends to have the most visceral reaction is the practice of ‘paying to stay’ or charging a ‘per diem’ fee. These fees, typically utilized by county jails, but also in place in prisons, actually charge inmates a daily ‘room and board’ fee for being incarcerated, as if the person 804af573e62f82bd5a90a97b187e0671checked into a hotel. Nationwide, it is unclear whether or not these fees begin accruing while a person is in custody prior to sentencing, if the per diems are only imposed once sentencing has taken place, or if, like in California, the fees can be charged retroactively for pre-sentencing custodial time after a person has been sentenced. Continue reading “Money Can buy you Happiness in Jail”

Jail, America’s Psych Ward

In America, people with mental illness have a remarkably disproportionate involvement in the criminal justice system. Men in jail are four times more likely to suffer from serious mental illness than their non-incarcerated counterparts while women are almost six times more likely. There are ten times more people with a mental illness behind bars than in state funded psychiatric beds. Put another way, there is not a single county in the United States in which the psychiatric facility serving the community has as many individuals with severe psychiatric disorders as does the county jail. A serious mental illness is defined as persons over the age of 18, who currently or at any time during the past year have had a diagnosable mental, behavioral, or emotional disorder of sufficient duration, resulting in a functional impairment that substantially interferes with or limits one or more major life activities.

The disparity between mentally ill individuals in society versus behind bars stems in part from the get-tough-on-crime policies that have permeated our criminal justice system for decades. These policies forced jails to morph into ill-equipped, large-scale, mental health facilities. If you follow the news, it is more apparent than ever that jail is not an appropriate place for the mentally ill. At the Los Angeles County Jail, a mentally ill inmate was beaten to death by his cellmates after they became irritated with him because he was “mumbling to himself.” In August 2015, a 31 year-old mentally ill detainee serving a five-day sentence for petty theft at Santa Clara County Jail was beaten to death by three correction deputies while he was waiting for a bed to free up in a mental health facility. He was allegedly beaten for pocketing his medication. These incidents illustrate that jail inmates with mental health issues are not getting the care they need and the results are devastating.

But are jails even required to provide mental health care to inmates? Absolutely. Jails are constitutionally required to provide adequate medical care to pretrial detainees under the Due Process Clause. In City of Revere v. Massachusetts General Hospital, the Supreme Court explicitly stated that pretrial detainees are entitled to be free of punishment, thus requiring the government to provide medical care to inmates and receive protections “at least as great as the Eight Amendment protections available to a convicted prisoner.” Under this obligation, the government must provide medical care necessary to maintain the health and safety of people they place behind bars. In Bowring v. Godwin, the Fourth Circuit concluded that the constitutional right to medical care extends to mental illness treatment, stating there is “no underlying distinction between the right to medical care for physical ills and its psychological or psychiatrist counterpart.” Because inmates are the only group of Americans with a constitutional right to health care it has been reported by some county officials that mentally ill individuals often commit crimes simply to receive treatment.

So what kind of mental health care are pretrial detainees (remember, these are individuals who have yet to be found guilty of any crime) actually receiving while incarcerated? Despite the large number of mentally ill people involved in the criminal justice system, police officers and jail staff receive very little training about interacting and managing inmates with mental disabilities. This lack of training can have deadly effects in the field and in jail. Mentally ill inmates are often locked in solitary confinement because jail staff doesn’t know how to manage them. Solitary confinement is thought to be the most severe and cruel punishment for anyone suffering from mental illness and is known to lead to suicide. Jails are often understaffed and thus many mentally ill inmates go untreated. Until recently, the Santa Clara County Main Jail had a grand total of three psychiatrists for the approximately 1,500 mentally ill inmates behind bars. This lack of staff has irreversible effects for Santa Clara jail inmates. For example, inmates experiencing adverse side effects from prescribed medication often go unnoticed. Inmates are often forced to stop taking their medication in preparation for a doctor’s appointment resulting in extreme drug withdrawal that leads to psychosis. This inadequate treatment results in a vastly higher number of mentally ill individuals re-entering the criminal justice system. In sum, “[t]he lack of treatment for seriously ill inmates is inhumane and should not be allowed in a civilized society.” – Dr. E. Fuller Torrey, founder of the Treatment Advocacy Center.

There are a number of additional factors contributing to the insufficient mental health care that inmates receive in jail. First, inmates with serious mental illnesses are four times more likely to be incarcerated for less serious charges such as disorderly conduct and threats than non-ill inmates. Second, jail exacerbates psychiatric symptoms because inmates are often placed in solitary confinement, and can be subjected to violence and sexual abuse from fellow inmates or jail staff. Third, people suffering from mental health disorders that don’t cause a radical change in behavior, like depression or PTSD, may go untreated because unless recognized by staff, an inmate’s mental health is self-reported. Fourth, pretrial detainees who were in therapy or comprehensive treatment before an arrest do not continue to receive these services while incarcerated, making mental health issues significantly worse. And remember, all these devastating affects of incarceration on mentally ill pretrial detainees occur before the individual is even found guilty.

Not only can the results of jails becoming de facto mental hospitals be detrimental to mentally ill inmates, but we actually spend more money by investing in incarceration instead of preventative care. Frequent flyers in the criminal justice system cost taxpayers twice as much as assertive community treatment programs because inmates tend to continually cycle in and out of jails and hospitals. According to a special report published in 2016 by USA Today, a community can pay for an entire year of intensive treatment for the cost of one incarceration (94 days) or one hospital stay (19 days) for a person with mental illness. The numbers prove that investing upfront in preventative mental healthcare actually reduces costs in the aggregate. A jail diversion program for the mentally ill in Massachusetts saved $1.3 million in emergency health services and jail costs. Georgia found that providing comprehensive mental health services to mentally ill people involved in the criminal justice system cut the number of days these people spent in the hospital by 89%, and the number of days spent in jail by 78%. In all, the program saved Georgians $1 million in its first year.

Mentally ill people are much more likely to be arrested and charged for minor offenses. These individuals are then placed in jail, an environment that exacerbates mental health issues, even before being convicted. They receive less than adequate mental health care for two times the cost of community treatment programs and when eventually released are significantly more likely to recidivate then their non-ill counterparts. My next post will be about the specific challenges mentally ill inmates are faced with right here in Santa Clara County, followed by a discussion of possible solutions to this great economic and social catastrophe.

Prop 47: Shorter Sentences, Reclassification, and Dispelling the Myth that It’s All for Nothing

It’s February 26, 2016 at 11:00 pm, and you have been pulled over for speeding. An officer, while using his flashlight to examine your driver’s license, notices a plastic bag with white powder on the passenger seat. He takes the bag and arrests you for committing a misdemeanor, the simple possession of cocaine. He takes you to an arresting agency where you are booked, held for up to 48 hours, and are later informed of your misdemeanor charge by a judge.  Bail is set at a misdemeanor-level price of $5,000 (PDF, page 135) and you are able to pay a bail bond company 10% of the bail in order be released with a promise to appear in court. Earlier that day, a homeless drug addict is arrested for petty theft, and is charged with her third misdemeanor. Unlike you, she cannot afford 10% of her bail and will remain in jail until she goes to court. Both of you face a county jail term of no more than six months. Cal. Penal Code § 19.

Had it been February 26, 2014, however, you both would have been arrested for a felony. Initially, the effect would have been the same: both of you would have been booked, held up to 48 hours, and then arraigned. But from then on, the circumstances would become much more severe. Bail for both of you would have been set at a higher felony-level, maybe $25,000 (PDF, page 29). Also, if either of you were found or pleaded guilty, you would have been sentenced to at least 16 months in “county jail-prison” as a non-violent felon. Cal. Penal Code § 18. See also Cal. Penal Code § 1170(h). This lengthened stay in county jail could potentially affect your physical and mental health, increasing your likelihood of recidivism. Further, upon release, the felony conviction would probably prevent you from obtaining employment in law enforcement as well as in positions involving children, the elderly, or disabled people.

Continue reading “Prop 47: Shorter Sentences, Reclassification, and Dispelling the Myth that It’s All for Nothing”