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.

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

The Problem of Wicked Wednesday

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

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

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

 

The Question of Probable Cause

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

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

Rewriting Inequity: Policy Recommendations for CA PC 1305

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

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

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

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

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

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

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

Get Rid of the Bail Schedule

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

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

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

Rewriting PC 1305

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

Stop Construing PC 1305 “in Favor of the Surety”

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

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

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

185 Days is Too Long

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

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

Rearrest Should Not Equal Exoneration

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

Conclusion:

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

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”

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”

The Decriminalization of Mental Illness in America

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

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