Suicide Decriminalization and Prison Abolition


Until the 1970s, the Western world criminalized attempted suicide. It was decriminalized because of new theories of mental health, the eugenics and euthanasia movement, a shift in legal focus to individual rights and privacy, and a lack of justification for penalizing self-harm through criminal means. Today suicide is only a crime in the few states that follow criminal common law, however, it is rarely prosecuted.

Although attempted suicide has been decriminalized in the United States, suicides occur twice as often as homicides each year. Suicide is the tenth leading cause of death in the United States for the overall population and the second leading cause of death among people between 10 and 34 years-old. The suicide rate has increased for thirteen years in a row with the highest rate since World War II in 2017.

In this series of posts I will analyze the decriminalization of suicide in light of the prison  abolition framework offered by Allegra McLeod. McLeod is a legal scholar and abolitionist who defined the “prison abolition ethic” in the article Prison Abolition and Grounded Justice. The way attempted suicide changed in terms of criminal law is exemplified by two key concepts of prison abolition: decriminalization and  preventative justice. I want to explore why decriminalization of suicide has been unsuccessful in lowering suicide rates, whether implementing other strategies outlined in the prison abolition framework would improve the situation, and if this offers any lessons in how prison abolition framework could be successfully applied to other crimes.

In this post I will to discuss the idea of prison abolition, the history of criminalization of suicide, and decriminalization of suicide. I will begin by discussing the prison abolitionist ethic, as outlined by Allegra McCleod. Then, I will discuss how different cultures view suicide and the history of suicide criminalization. This post focuses on England because the United States adopted English common law at its inception. Finally, I will discuss how and why suicide was decriminalized and where suicide stands in criminal law today in the United States.

This series of posts will address the criminalization of suicide and attempted suicide only. It will not discuss physician-assisted suicide, suicide pacts, influencing someone else to commit suicide, or accidental killings of another during attempted suicide.

The Prison Abolitionist Ethic

According to Allegra McLeod, prison abolition is the ethical, institutional, and political framework that aims to demolish the current criminal law and police system in exchange for positive social projects and institutions that work to prevent criminalized conduct. Prison abolition is about more than just tearing down prisons, it is about rethinking justice, security, public safety, and criminality.

There are several key concepts that are necessary for prison abolition to be successful. The first, and most significant, is preventative justice, which “designates a range of measures aimed at reducing the incidence of harmful behavior, typically by targeting the risks posed by specific individuals and less often by addressing the potential harm posed by given social situations.” These preventative measures range from alternatives to detention to funding social programs that reduce crime. Other key concepts are decriminalization, justice reinvestment (meaning “reinvesting criminal law administrative resources in other sectors and also reinvesting the concepts of justice and prevention w/ more expansive meaning”), creating safe harbors for vulnerable persons and communities to care for themselves, alternative livelihood programs to prevent conduct that would usually be addressed by criminal law administration, simple design innovations that improve security, and urban redevelopment that engages community members in projects and populating urban areas.

The following sections outline the history of suicide and attempted suicide criminalization and decriminalization. An abolitionist framework would start with decriminalization, but it wouldn’t end there. It would extend to the root causes of suicide and build out programs to prevent it. Decriminalization does little to promote public welfare without the addition of the concepts laid out in the prison abolition ethic.

Suicide in Different Cultures

The different cultural views of suicide begin within the word itself. The term “suicide” connotes an active verb of “killing.” The root “sui” means himself or herself and “-cide” means to kill. The term suicide did not exist until the 1600s. The terms self-homicide, self-destruction, and self-murder were previously used in the English language. Many other languages did not have an equivalent term because they regarded the act as a passive dying, rather than an active killing.

In ancient Rome, suicide was commendable when it was completed by warriors in battle when defeat was inevitable. In ancient Japan, seppuku was commendable in certain circumstances. Suicide was also deemed honorable in war contexts in several cultures. Buddhists in China widely accepted immolation and it is still accepted among some Buddhists today. Some instances of suicide are accepted in the Hebrew Bible and the New Testament, but it is unconditionally condemned in the Quran.

Suicide Criminalization

Suicide was first criminalized by the Romans. The Roman Council of Arles “denounced suicide as a diabolical inspiration” and criminalized suicide of servants in the fifth century to prevent the significant number of slave suicides. Attempted suicide of a soldier was also criminalized by Roman military law. The punishment, ironically, was death.

Christianity also played a part in suicide criminalization in Rome. St. Augustine condemned suicide as violating the Sixth Commandment (“Thou shalt not kill”) unequivocally but excused it for the rare virgin suicides that resulted in sainthood, such as with Samson or Pelagia. The Council of Braga in the sixth century denied funeral rites to those who committed suicide. Dishonoring the corpses of persons who completed suicide became customary and then codified into law. Then forfeiture of a victim of suicide’s property to the lord later became codified. The exception was if the suicide was committed as a result of madness or illness. In the thirteenth century, Saint Thomas Aquinas further condemned suicide in his Summa Theologiae. The Catholic perspective of suicide condemnation became the dominant view across Europe.

Suicide Criminalization in England

The Catholic Church’s perspective most likely led to criminalization of suicide and attempted suicide in England. In the thirteenth century, Henry de Bracton considered suicide a felony and wrote that committing suicide resulted in a forfeiture of goods. By the fourteenth century, suicide was called felo de se and treated as a felony. In order to be considered a suicide, the self-killing had to have the legal element of “malicious intent.” Courts would hold post-mortem jury trials to determine intent. The criminal stigma and forfeiture of property could be avoided by a finding of insanity. Either way, there was a customary practice of driving a stake through the corpse’s heart and dumping the body in a pit near a crossroads. This was to prevent the spirit from returning, and ensure that, if the spirit did return, it would be confused as to which direction it should go.

William Blackstone believed that suicide was: “[a] double offence; one spiritual, in invading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects; the law has therefore ranked this among the highest crimes, making it a peculiar species of felony committed on one’s self.”

Suicide Criminalization in America

Suicide criminalization practices varied in the early colonies. Although the colonies adopted English common law, they did not adopt all aspects of it. Suicide was rampant among indigenous peoples and enslaved Africans. Along with the mass deaths of indigenous peoples due to diseases carried over from Europe and conflicts with colonizers, there were also numerous acts of suicide. Enslaved Africans often committed suicide on ships but this was soon prevented by force-feeding and nets which prevented jumping overboard. In the colonies, legislation provided state compensation to slave-owners for the suicide of slaves who were accused of felonies.

Early on in colonial America, Massachusetts adopted the impaling and burial by a highway law from England. However, none of the states considered suicide a crime by the nineteenth century. The colonies decriminalized suicide to set them apart from England during the Revolution and after, with no penalties remaining in the thirteen colonies by 1798. However, attempted suicide was considered a crime at common law. It was treated as a misdemeanor since it was considered an attempted felony. Some states have enacted legislation that expressly rejects common law crimes. If these states did not codify attempted suicide into their criminal statutes then attempted suicide would not be a crime in those jurisdictions. Some states did codify a criminal statute. Most of them mandated that attempted suicide is punishable by up to 2 years in jail, a $1000 fine, or both.

Suicide Decriminalization in England

Ideas about the criminalization and condemnation of suicide began to shift in the seventeenth century as a result of progressive intellectual, scientific, and cultural thought of the age of the Enlightenment. Non compos mentis, or insanity, jury verdicts rose in postmortem suicide trials, which protected families from being forced to forfeit their property. Before the seventeenth century, 2% of suicides had non compos mentis, or insanity verdicts. 42% of verdicts were non compos mentis in 1700 and they rose to 80% in 1750 and 97% in 1800.

In the eighteenth century, society became more secularized and the medical profession emerged. Public perception of suicide became more tolerant. Two suicides in the early nineteenth exemplified the shifting attitudes. The British Foreign Secretary committed suicide in 1822 which put his post-mortem jury in a tough position. They had to decide whether an esteemed member of government was a felon or insane. They returned with a verdict of temporary insanity, meaning that his property was not forfeited to the king and he did not have to have a crude burial by impalement at a crossroads. The next year, in 1823, a law student committed suicide and was subjected to a crossroads burial. There was public outcry and the practice was outlawed the same year by the Burial of Suicide Act.

The property implication of suicide, escheating to the king, was outlawed in the Forfeiture Act of 1870. Although there was no way to penalize completed suicide anymore, attempted suicide began to be considered a misdemeanor. Attempted suicide was officially decriminalized by statute by the Suicide Act of 1961.

Suicide Decriminalization in the United States

The nineteenth century brought the emergence of psychoanalytic theory, social science theory, social Darwinism, and the industrial revolution. Privatization of family life and urbanization created a new disaffected isolation which resulted in a rise of suicide.

The eugenics movement, which evolved from the ideas of social Darwinism, in combination with the creation of morphine, led to the rise of the euthanasia movement,  which was a social movement that lobbied for the legalization of euthanasia. Euthanasia, or mercy killing, is “painlessly putting to death persons suffering from painful and incurable disease or incapacitating physical disorder or allowing them to die by withholding treatment or withdrawing artificial life-support measures.”

Suicide rates spiked during the Great Depression, sparking public awareness and conversations about death and suicide. The Euthanasia Society of America was founded in 1938 by a majority of eugenicists. Euthanasia had significant lobbying efforts and began to grow public support.

Then World War II stopped the euthanasia movement in its tracks. The Nazis murdered nearly twenty million people and committed mass atrocities. People were outraged and disgusted by the crimes of eugenicists written about in the newspapers. They began to equivocate the euthanasia movement with Nazis. After the war, law began to change in the United States, with a focus on individual rights and privacy exemplified by the Warren Supreme Court, which issued a series of landmark rulings in the 1960s.

By the 1970s most states with statutes criminalizing attempted suicide had repealed them. Today, only states that follow criminal common law have the ability to criminalize suicide. This is only a handful of states and attempted suicide is rarely prosecuted.

Suicide and Prison Abolition

The history of suicide criminalization and decriminalization demonstrates that ideas about crime have more to do with politics, religion, and the voices of those in power than it does about rational assessments of the public good. The logical response to preventing suicide or any other behavior looked down upon by society is to investigate why the act was committed and address the root cause. The historical response, however, was to criminalize suicide and punish it after the fact. This did not act as a deterrent but it did have the effect of punishing the family of the victim and enriching the government. This could be said for most crimes that are still criminalized. The root cause of criminal acts is not being addressed and crime continues to occur. The only difference is that suicide is no longer considered a crime. This is largely because of changing attitudes towards suicide that began to consider it a private issue rather than a public one and the fact that the government could no longer profit from suicide in the form of escheatment.

However, suicide rates have only risen since it has been decriminalized. In the last 50 years since decriminalization began, no one has called to criminalize it again to prevent suicide. Since we know that criminalization does not impact the rate of suicide then it probably does little to prevent other acts that are considered crimes. So why do we still punish crimes when this method is ineffective? Suicide is a good example to test out the prison abolition ethic because it was decriminalized even though its prevalence has not changed. Decriminalizing suicide illustrates the importance of the positive project of abolition. Without the society-building features, decriminalization does very little to promote the public welfare.

The next post will discuss how decriminalization has not been successful in lowering suicide rates, if implementation of any of the other key concepts of prison abolition would be effective, and whether suicide decriminalization offers any lessons for how the prison abolition ethic could be applied to other crimes.

Access to Health Care and Entry into the Criminal Justice System

“Of all the forms of inequality, injustice in health care is the most shocking and inhuman[e].” –– Martin Luther King, Jr. (1966)

Access to Health Care for all Ages Remains Elusive, Especially for Those in Poverty, and These Conditions Increase the Likelihood of Entry into the Criminal Justice System.

There is a strong, biconditional link between minors’ inadequate health care access and poverty and between poverty and entry into the criminal justice system. That is, poverty worsens health and poor health engenders poverty. Poverty leads to criminal justice involvement and criminal justice involvement leads to poverty.

This post focuses on the link between minors’ inadequate health care access and entry into the criminal justice system. Poverty is the link between inadequate health care access and entry into the criminal justice system. If we can break the link between poverty and poor health — particularly in minors — we can reduce our prison populations.

Insufficient health care access and the cycle of poverty are bidirectionally linked.

Put simply, poverty negatively impacts health and poor health perpetuates poverty. Poverty is an essential element to consider in this relationship because data that directly examines minor populations’ access to health care and future entry into the criminal justice system is scarce. Recently, while some studies have analyzed the relationship between health care access and incarceration, those studies focused on adult populations. While these studies will be illustrative when analyzing minors, currently, it is vital to use poverty as a link.

I will use the Supplemental Poverty Measure (SPM) as the metric for poverty. Unlike the U.S. Census Bureau formulation, the SPM accounts for, inter alia, the receipt of tax credits and government assistance. The SPM has measurement consistency, which is generally a measure of data reliability. In other words, measurement consistency gauges how well the data collection methods are performing at measuring what researchers are intending to measure. Additionally, the SPM is based on “inflows” and “outflows.” Outflows reflect income spent only for basic needs. Inflows include cash income from any source and noncash benefits that contribute towards a family’s spending. Inflows do not include necessary expenses and taxes owed. Ultimately, “[a] family is designated as poor if its annual money inflow, net of necessary expenses, falls below its threshold level of money outflow.”

The majority of individuals and families who experience poverty do not stay in poverty for the remainder of their lives. More often, individuals and families will cycle in and out of poverty. While most adults who experience poverty do so cyclically, the data for adults and children are different. Indeed, children who grow up in poverty are significantly more likely, relative to adults, to stay in poverty their entire lives.

Poverty cripples both physical and mental health. Individuals and families who live in impoverished communities are at greater risk for chronic disease, have a higher mortality rate, and experience lower life expectancy. Even looking only at adult populations, the effects of poverty are punishing and unjust. The effects of poverty, however, take a uniquely cruel and depressing toll on children.

The effects of poverty on children begin in the womb. Women in disadvantaged communities experience higher maternal mortality rates and give birth to children with lower birth weights. Should mom and baby survive childbirth, however, living in poverty increases food insecurity and decreases nutrition access. Continuing as they age, children who live in low-income homes experience higher rates of asthma, developmental and learning disabilities, exposure to tobacco and lead, obesity, poor growth, and learning and behavioral problems. Additionally, children who grow up in impoverished homes are more likely to engage in tobacco use and substance misuse. The disadvantages that accrue with poverty eventually become too burdensome to shoulder, which leads to increased mental health problems and greater rates of suicide.

Access to Health Care Services and Entry into the Criminal Justice System

My name is Dustin Weber and I am a third-year law student at Santa Clara University School of Law. I completed my undergraduate degree in Political Science, with a Pre-Law emphasis, at California State University, East Bay. Prior to coming to law school, I had a career in the coffee industry.

I have a personal stake in the issue of health care access and delivery. I am a Type-1 diabetic (T1D). Management of this disease is interminable, exhausting, and painful. Improper management of the disease leads to a litany of comorbidities, including potentially dangerous physical and mental complications. This disease is cruel and unforgiving. The United States (U.S.) health care system has made management of the disease significantly more difficult. Before passage of the Affordable Care Act (“Obamacare”), going directly to law school was a greater challenge for someone with a chronic disease about to age off his parents’ health insurance plan. So, given the importance of health care to an individual’s wellbeing, I will be focusing my writing on health care access and its relationship to entry into the criminal justice system.

Specifically, I will demonstrate how expanding the use of wraparound services to all minors, based on the Wraparound Initiative model, would stem the flow of already disadvantaged populations into the criminal justice system. Generally, wraparound services are those not focused only on treating specific health issues, but services that are more comprehensive and aimed at providing individuals with holistic treatment. I will be unpacking this issue in three parts. In the first part, I will establish the link between insufficient health care access as a child and the increased likelihood of entering the criminal justice system. In the second part, I will discuss how our current system has failed and why the Wraparound Initiative model is ideally suited for slowing entry of individuals into the criminal justice system. In the third part, I will propose how to modify and expand the Wraparound Initiative model so that it can be implemented in communities across the country. 

Who are dually-involved youth? And why do we need DIY courts?

Many children who are involved in the child welfare system and juvenile justice system go back and forth between dependency hearings and criminal proceedings. Along with this come visits with social workers, probation officers, and usually some kind of social services for the child and family. Because this group of children are involved in two legal systems, they are called “dually-involved youth.” (DIY) A significant number of DIY have been affected by some form of childhood trauma and they are often underserved as they move between the juvenile justice and child welfare systems. Due to the trauma affecting these young people and a lack of stability in their lives, they generally need more services than youths involved in only one legal system. In this post I will describe dually-involved youth and the problems they face as well as why we need dedicated DIY Courts. In the next post I will discuss how DIY Courts work and how using an integrated systems approach helps solve these problems.

We need Dually Involved Youth Courts to help the most vulnerable young people.

Because there is no national data on dually-involved youth I will use data from various jurisdictions that have studied this population to show how these children are affected by being dually-involved. The fact that there is no national data demonstrates how little we know about this group as a whole. As a result, we are forced to use limited information when designing policy to combat the negative effects of dual-involvement.

Continue reading “Who are dually-involved youth? And why do we need DIY courts?”

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.


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.

The Socioeconomic Consequences of Being Accused of a Crime

The leading arguments in favor of restricting bail and pretrial release are that those who are accused of crimes pose a danger to society and will fail to appear at their court date. Former Attorney General Holder, the highest ranking legal officer in the country, recently noted that non-violent defendants “could be released . . . and allowed to pursue or maintain employment, and participate in educational opportunities and their normal family lives—without risk of endangering their fellow citizens or fleeing from justice.” Yet two-thirds of the 500,000 un-sentenced individuals currently awaiting trial in jail are low risk, meaning they are identified as “posing no significant risk to themselves or the community with a likelihood of reappearance at subsequent court dates.” These “low risk” individuals, when forced to remain in jail due to their financial status, face very high risks to their socioeconomic status. The purpose of this post is to explore the socioeconomic consequences pretrial detainees are forced to endure due to their incarceration.

The Supreme Court has endorsed the idea that an arrest is an act that can “seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family, and friends.” It logically follows that that excessive, and even short term, pretrial detention can make these problems exponentially worse. Continue reading “The Socioeconomic Consequences of Being Accused of a Crime”

Reclassification as a Means for Integration: The Positives of Prop 47


If you are in jail, imagine having your prior felony reclassified as a misdemeanor so that you no longer face six years in prison for stealing $10 worth of merchandise (anecdote to be shared below). Or, if you are released in society, imagine having your criminal record adjusted so you are no longer barred from receiving federal welfare, student grants, or medical care. (PDF pages 9-10). You also are no longer excluded from employment in care facilities, including child-care jobs, and you might no longer face automatic disqualification if potential employers discover your conviction records. (Although technically it is illegal for an employer to discriminate against an individual based on an individual’s criminal record, it certainly still happens). Further, if you are an undocumented immigrant, a parent, and facing deportation, your adjusted criminal record may qualify you for protection under Deferred Action for Parental Accountability (DAPA). (PDF page 5). Also, if you are undocumented, facing deportation, and entered the United States before you were sixteen, your adjusted criminal record may qualify you for protection under Deferred Action for Childhood Arrivals (DACA). (PDF page 5).

All four groups of people described above did not have these freedoms or protections prior to Prop 47’s passage. In addition to reducing prison and jail populations along with infrastructural costs, Prop 47 strove to change certain individuals’ felony records, improving the social and financial status of these individuals who had previously committed non-violent drug possession or petty theft crimes. Reclassification is not instantaneous, but it helps nonviolent offenders receive the financial support and employment opportunities necessary to become more fully integrated in society.

Continue reading “Reclassification as a Means for Integration: The Positives of Prop 47”

Privatization of Money Bail

In a previous post, I described the basic structure of for profit bail and addressed potential concerns with the privatization of this section of criminal justice. This post will address whether private bail agents save taxpayers’ money, increase efficiency and innovation in pretrial release, allow policymakers to focus on policy instead of procedure, streamline and downsize government, and, for their customers, whether they increase flexibility of service, quality of service, and the appearance rate in court.

The best approach to this analysis is to look at the service needed, the service actually provided, and the comparative costs and benefits of the private system against public systems. (Here’s an alternative analysis concluding that financial remuneration for pretrial detainees is a preferred solution). The service needed is simple. We presume the innocence of criminal defendants and, in order to not deprive them of liberty without any proven reason, we release the defendant pending trial. The public wants assurances that the released defendant will: 1) not endanger public safety during pretrial release and 2) show up to court (or prevent a failure to appear, “FTA”). Money bail only addresses one of those needs – the failure to appear, discussed below. For the sake of argument, and because the bail industry claims to protect public safety, I address public safety first. Continue reading “Privatization of Money Bail”


This semester, the Criminal Law and Policy class researched the way bail operates in Santa Clara County. The class discovered that individuals that have been arrested and taken to the main jail do not have access to information about own recognizance release during the booking process.  While there are advertisements for commercial bail companies, there is nothing posted in “the tank” to explain to people that they might not need to pay to be released before the conclusion of their case.  I wrote about the potential problems this could cause for people accused of a misdemeanor crime who are entitled to own recognizance release absent an express finding from the court that other terms of release should be imposed.

After learning about this problem, my colleague Ruby Renteria and I decided to create a document that would explain to individuals their potential eligibility for citation and release or own recognizance release that could be posted in the tank.  We made the sheet below available to the Bail and Release Work Group and it was circulated during their last meeting.  We hope that this marks the beginning of the process to make this sheet available to the individuals in need of this information.

Click here to view the Own Recognizance Release Information Sheet.

Lose your job or lose your freedom?

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

The Problem

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

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