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.

The 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.

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.

 

 

 

Scientifically Assessed “Risk-Based” Bail isn’t Perfect! (But It’s Still a lot Better than Money Bail)

My series (part 1, part 2,) of posts have sought not to focus on the flaws of the money bail system (my colleagues have done an admirable job), but to highlight an alternative – risk-based bail.  I’ve discussed tools that are better indicators of a defendant’s risk than the proverbial gut, the history of national bail reform and the 4 elements that make up risk-based bail, and an insider’s look into effective implementation of risk-based bail here in the federal Northern District of California. However, there are still those who believe a risk-based bail system is not as effective as money bail. This post assesses the arguments proposed by the status-quo crowd.

There are a wide variety of arguments by proponents of the money bail system. The sources of these arguments are similarly varied, from bail bond associations, legislators, judges, and even civilian comments on websites (First Amendment exercise at its finest). However, the two most prominent arguments seem to be the following:

• Money bail is a great incentive for defendants to show up to court
• A money bail system is free to society and taxpayers

When assessing the system (in practice not just theory) it is still clear, money bail is a bad deal, and one we can no longer afford.

What Is The Purpose Of Bail? It Depends On Who You Talk To

While discussing the California bail system, a Santa Clara County district attorney said, “It’s just so difficult to get guilty pleas from defendants who are NOT in custody.” (Emphasis added) These statements, along with many others I’ve heard over the course of my research, serve to reinforce common misunderstandings about the bail system. These misunderstandings, in turn, have misdirected conversations about what the U.S. bail system is intended to accomplish.

Immediately after hearing the district attorney make this statement, I thought to myself, “if a defendant is truly guilty, a fast and easy guilty plea would certainly save the county a lot of resources and it would be in the best interest of the community because it would ensure speedy justice for the victim.” However, a fast and easy plea deal is not beneficial to everyone when we consider the effects of detaining individuals prior to trial.

Over 62% of county jail inmates are NON-CONVICTED individuals. This means that over half of the jail population is made up of people who have not yet been found guilty beyond a reasonable doubt. Individuals accused of a misdemeanor spend more than 30 days in jail before they are tried and either found not guilty or convicted. When we consider all of this, it’s reasonable to assume that many individuals who are wrongfully accused may be coerced into a guilty plea simply because they are desperate to get out of jail.

District attorneys are charged with proving an accused individual’s guilt beyond a reasonable doubt. Negotiating plea deals is also an important and necessary part of their job. Therefore, keeping defendants in custody is beneficial to this part of their work because it provides an incentive for the accused to agree. This however, has absolutely nothing to do with the purposes of the U.S. bail system. Stated another way, the U.S. bail system is not in place to keep a defendant in custody for the sake of helping district attorneys do their jobs. In this post, I will provide commentary on other misconceptions I’ve found during my research.

To date, I have uncovered and corrected some of the misleading information available to the public about the U.S. bail system in an attempt to foster public discourse in a meaningful way. In a previous post, I took it upon myself to provide readers with a thorough understanding of the term “bail.” Unsurprisingly, when I read a publication that uses misleading information to further spread the belief that bail must always involve money, or that it should accomplish anything other than what its meant to accomplish, I am quick to respond with complete and accurate information.

On November 1, 2012, the Golden State Bail Agents Association published a testimonial written by one of their attorneys, Mr. Albert W. Ramirez. Mr. Ramirez’s testimony, while not technically wrong, is misleading and demands some elaboration. This testimony was made before the California General Assembly. In this post, I don’t intend to disprove Mr. Ramirez and I don’t intend for this post to serve as a response to his statements. I only cite to his testimony because it provides an illustration of the common misconceptions I’ve found during my research.

In this post, I will supply that elaboration by offering an accurate statement of the issue at hand and then following with an explanation of how the statements made by Mr. Ramirez are misleading. I don’t urge readers to read or accept Mr. Ramirez’s testimony because I have taken issue with the way in which it misleads readers. Further, it is not necessary to read the testimony as I’ve included the relevant statements for my commentary.

Myth: Money bail opponents think bail is too expensive.

Truth: Advocates for bail system reform seek to reduce the number of detained pretrial defendants in order to achieve a fair and effective system.

Mr. Ramirez maintains that, “California’s commercial bail system has been under attack by the ACLU” and that the “ACLU’s primary criticism of commercial bail is that it’s too expensive.” (Page 1) First and foremost, “the attack” as he calls it is not necessarily on the commercial bail system, as the ACLU and other groups have clearly indicated that their concerns are directly associated with the entire bail system as a whole. On numerous occasions, the ACLU has specifically been critical of the money bail system for the detrimental effects it has on the poor. For example, a dangerous but wealthy individual may be released from custody by paying money bail while a person who does not pose a danger to society may be held simply because they cannot afford to do the same. Both of these scenarios are bad for obvious reasons and have absolutely nothing to do with the commercial bail system.

Further, concerns over the U.S. bail system stem from the large numbers of individuals currently incarcerated. While the ACLU has indeed urged states to pass more stringent regulations for regulating commercial bail, it’s important for readers to be aware that stringent regulation is not an attack on the commercial bail industry, but rather a means for protecting the rights of the indigent, who happen to be the clients of private commercial bail companies. Some states such as New Jersey have already taken steps towards this.

Myth: The effectiveness of any bail system is best measured by failure to appear rates.

Truth: The bail system is in place to both ensure a defendant’s appearance at court and ensure public safety.

Many commercial bail supporters (including Mr. Ramirez) misguidedly rely on the failure to appear (FTA) rates to argue that commercial bail is much more effective than other forms of release such as Own Recognizance release (OR). David Ball at the Santa Clara University School of Law illustrates why FTA is not a great measure of effectiveness. For the purposes of this post, the key takeaway from Professor Ball’s article is the fact that while the bail system is in place to ensure a defendant’s appearance in court, that’s not all it’s meant to accomplish and ensure.

Mr. Ramirez correctly states, “Our criminal justice system cannot function if defendants fail to appear for their court proceedings,” but he completely disregards the fact that these failure to appear rates do not capture the whole picture. (Page 1) For one thing, a defendant may be returned to custody due to being rearrested (possibly on different charges). When that occurs, there is virtually no chance that he will miss any court dates as he is in custody and the jail officials will simply surrender him to the court on his given court date. Mr. Ramirez, like many other commercial bail proponents, completely ignores the fact that the justice system is also meant to guarantee a defendant’s release under the least restrictive conditions and ensure public safety.

Myth: Commercial bail is a necessary component of the criminal justice system.

Truth: There are many alternatives to commercial bail such as releasing people on “bail” without the need for bail bonds.

The effectiveness of a pretrial release method must include considerations of both the defendant’s likelihood to appear for their scheduled court date and their threat to public safety. As already mentioned, bail is meant to ensure that a defendant appears at his court date. This requires the court to impose certain conditions upon a defendant’s release in order to ensure that he shows up to his court date. When determining bail terms and conditions, a judge is required to consider whether the defendants pose a risk to public safety.

Mr. Ramirez cites to “The most comprehensive study ever done on bail” in an attempt to undercut the entire purpose of bail by simply focusing on failure to appear. (Page 3) The testimony ignores the fact that pretrial release determinations vary from state to state with regards to criteria used and the specific conditions of release. In some states, defendants are much more likely to be released with little to no consideration of their threat to public safety or their likelihood to appear in court. This is important because a pretrial system that considers the threat to public safety in their determination for release will likely provide a much more thorough interview and as such likely to release fewer defendants.

Mr. Ramirez states that “A risk assessment tool is merely a questionnaire consisting of a list of factors that have been shown to correlate one way or another with criminality or flight risk.” and then proceeds to question the validity of such findings. (Page 6) Specifically noteworthy is the fact that Mr. Ramirez’s fails to acknowledge that some jurisdiction, such as Santa Clara, have a comprehensive system in which defendants are thoroughly interviewed and the determination about their release is made after a long process.

In Santa Clara County, federal and state constitutional protections from excessive bail are often successfully implemented through pretrial release programs.

One key issue in Mr. Ramirez’s testimony is the fact that many of his statements rely on the idea or assumption that people have “the right to bail.” As previously stated, “bail” refers to all types of pretrial release, not just those made in exchange for money. (Page 3) The protections and rights prescribed by the federal and California constitutions do not guarantee that an individual is entitled to any specific type of release from custody. In fact, some defendants are not entitled to any kind of release at all.

It is certainly true that many California residents, along with many other U.S. residents, have money bail set, and that they often use commercial bail companies when they cannot afford to pay the full amount of money required by the court. Thus, while many residents use commercial bail companies to secure their release from custody, it is not true that “bail” is usually implemented through commercial bail companies. Courts not only release defendants by setting an amount of money that must be paid by the defendant to the court—they also release defendants on certain conditions, or simply cite and release the individual with a promise to return to court.

More importantly, protections from excessive bail are embedded in the Constitution of the United States as well as in many state constitutions. Unlike the misguided statement I quoted at the beginning of this post, these protections are specifically designed to protect defendants from entering into coerced or false guilty pleas. Also, contrary to popular belief, this protection does not grant an individual the right to pay a bail agent a large sum of money in exchange for his freedom.

This protection simply grants an individual the right to be released from custody, while he awaits his trial, under the least restrictive conditions. I mention the term “popular belief” because this is yet another misguided assumption that a lot of Americans (myself included) have been led to believe by statements from officials in high positions (like the district attorney), news coverage, and other popular media.

Why does this all matter? Misunderstandings about the U.S. bail system and the protections afforded by the Eighth Amendment have limited conversations about how this system can be improved both to ensure community safety and a defendants appearance in court. Money bail has become the norm and many have accepted it as the only system simply because it’s all we have known. These limitations have blinded most people from truly appreciating the fact that money bail does not accomplish any of its goals. These limitations have also allowed many to ignore the fact that there are alternatives to bail. A meaningful conversation about bail reform is long overdue and it must begin with accurate information.

 

 

 

Risk-Based Bail- The Money Bail Fix since 1966. Part 1- How The Bail Reform Acts Tackle Money-Bails Biggest Problems.

While money bail is deeply flawed, the answer to this problem will require more than just getting rid of commercial bail bond companies; they are a mere symptom of the “one size fits all” bail schedule model. The solution as we will see is risk-based bail. It’s recently been employed in New Jersey and hailed as the ideal model. But as novel as it sounds, risk-based bail has been around since before we set foot on the moon. For over 40 years, the federal courts have been able to tailor release based upon the risks of a specific defendant, be that failure to appear (FTA), or danger to the community. Further, these risks are mitigated with the least restrictive measures available. Assuming a defendant’s risks are accurately measured, conditions exist to mitigate risk, those conditions are actually enforced, there is no apparent need for the bail bondsmen. This is probably why there is no federal bail schedule and hardly any bondsmen in federal court.

There is often a distinction between law in the books, and law on the ground. As such, this post focuses on the former: the history of congressional bail reform, the alternative bonds used in federal court, and how we got the current elements of risk-based bail. The follow up post demonstrates one such instance of how risk-based bail has been rolled out here in the federal Northern District of California.

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.

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.

ARRESTED FOR A MISDEMEANOR?

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.

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 14^th 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.

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?

A Monopoly On Information: How Advertising In Jails Is Problematic For Defendants

Imagine being arrested and finding yourself in a jail cell. You have no access to a phone or the outside world. You know you have to show up for work the next morning but you have no idea what’s about to happen to you. You’re confused, afraid, and you would do anything to get out.

A few hours later you’re placed into “the tank” where an officer begins to ask you question. The tank is a holding cell filled with other recent arrestees all awaiting their fate. There’s not much to look at in “the tank” but you do notice a poster on the wall. The poster gives the names and numbers of many different bail bond agencies. You have no idea what a bail bond is and you’re still confused about what’s about to happen to you, but the advertisement tells you these agencies can help you get out.

The questioning stops and you ask if you can call one of the agencies. The officer allows this phone call without hesitation. Your call goes right through at no cost to you (not yet, anyway). This is because bail bond agencies generally contract with the jail phone service providers to ensure that defendants inside the jail have immediate access to them.

 

You speak to an agent named Bad Boy who promises he can bail you out in forty-five minutes. Unlike the officers and other law enforcement personnel you’ve come in contract with since your arrest, Bad Boy treats you like you’re human. At this point, you agree to pay him $5,000.00, 10% of the total cost of bail, to come bail you out. He tells you he can contact your wife for you and let her know you’re coming home. But most importantly, he tells you “everything is going to be okay” now that you’ve contacted him.

A few hours after you hang up the phone, Bad Boy comes and picks you up from jail. However, instead of taking you home, he takes you into his office to sign a lengthy contract that you don’t understand. At this point, you’re so exhausted that you sign without reading it (and because Bad Boy was so nice and polite). You are now facing a multitude of inconveniences: criminal charges from your arrest, expensive court fines, missed work, and now a contract with a bail bond agency where you have agreed to pay thousands of dollars.

This scene is all too familiar for those who have spent enough time researching the bail system in the United States. Many issues arise out of this particular scenario. First, some defendants can be released on their own recognizance (OR) at no cost and may benefit from waiting to obtain a pretrial services assessment. Second, these types of contracts place defendants and their families in a very vulnerable position.

In this post, I will discuss advertising in Santa Clara County Main Jail. Specifically, I will look at the way in which bail bond agencies have been given a monopoly on the information available to the accused. A monopoly is complete control of the entire supply of a service in a certain area or market. For the purposes of this discussion the service provided is information about release available to the accused and the area or market is the jail. Those in control are the bail bond agencies. Readers must note that private defense attorneys are also allowed to advertise in county jails. While this also raises several concerns, I only discuss bail bond agency advertising because of the specific impacts associated with that advertising: how these agencies control the information available to a defendant and in some instances are a defendant’s only method of contact with the outside world.

I use the term defendant and accused interchangeably because it is often the case that someone may be arrested and never actually charged with a crime. My post begins by discussing how advertising has made its way into the county jails. I will then proceed to identify the steps involved in determining the ins and outs of this advertising. I will conclude by posing many unanswered questions pertaining to the negative effects of this form of advertising.

The Unexamined Consequences of Allowing Advertisements in County Jails:

In a letter dated March 1, 2016, John Hirokawa, the Santa Clara County Chief of Correction, recommended that the Board of Supervisors of the County of Santa Clara (the County) approve an agreement with the Jail Advertising Network (formerly known as Partners for a Safer America.) I will proceed in this post by referring to the Jail Advertising Network as Partners for a Safer America (PSA) because that is the name used in many of the Santa Clara County records. The agreement was approved. It allows PSA to sell advertising space in the Santa Clara County jails, bringing in over a hundred thousand dollars in revenue for the department of corrections(DOC). The only people/entities eligible to purchase advertising space are bail bond agencies and private defense attorneys.

In his recommendation, Hirokawa discusses the history of similar agreements made by the County and provides minimal information on the potential impacts of approving the agreement. Hirokawa writes, “the recommended action will have no/neutral” impacts on children, seniors, and sustainability. In one of his concluding statements, he indicates that the “DOC … would lose over 100K in revenues” if this agreement is not approved. Hirokawa’s letter fails to so much as even mention some of the potential negative consequences of this approval. For example, allowing for such advertisements without informing defendants of the potential for OR release may result in a defendant unnecessarily paying thousands of dollars to a bail agent. This lack of awareness or willful blindness on the part of the County is troubling primarily because it shows a complete disregard for the financial welfare of the accused, many of whom are their constituents.

Partners for a Safer America (Jail Advertising Network)

Let me digress for a moment to provide some background information on PSA and what it is they actually do. Simply stated, they are a company that contracts with counties all over California to sell advertisement to bail bond agencies. They keep anywhere from 20-30% of the profits and the County gets the rest (usually 70%-80%). The advertisement or product they produce is a poster board (as shown above). While this may sound simple, their home page provides a much more expansive interpretation of their work. The home page begins by describing the financial troubles faced by law enforcement agencies all over the United States. Their sales pitch concludes with a thought-provoking sentence, “As we grow in the number of institutions we support, we hope to realize the vision of safer, more secure communities from coast to coast.”

At a first glance, it appears as though PSA is an agent of the counties they “support.” PSA’s website further encourages this mistaken belief by declaring their purpose is to provide “financial support and resources to those who keep our communities safe” and by using photos like the one above. To a naive outsider, it appears as though the PSA mission is much broader than simply providing advertising for bail bond agencies and private defense attorneys.