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.

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

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.

 

 

 

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.

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.

product-2

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.”

Untitled

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. 

 

Continue reading “A Monopoly On Information: How Advertising In Jails Is Problematic For Defendants”

You’re a CA County Concerned About Potential Ill-Effects of Commercial Bail, What Can You Do?

State law often allows counties to regulate industries at a local level. For example, the business and professions code 25612.5, which regulates alcohol in California, states in article 1 that these regulations are “state standards that do not preclude the adoption and implementation of more stringent local regulations that are otherwise authorized by law.” This allows a county to be “dry” and prohibit alcohol even though alcohol is a legal drug in the United States. Even if a county cannot regulate an industry directly, it can indirectly influence that industry through a variety of legal strategies, such as regulating land use. This post identifies California-specific local solutions to bail concerns that may improve the way bail bondsmen interact with criminal defendants. Continue reading “You’re a CA County Concerned About Potential Ill-Effects of Commercial Bail, What Can You Do?”

Risk Assessment Tools: How Science Is Making It Safe to Release

In a quote oft attributed to Mark Twain, “It’s not what you don’t know that gets you in trouble, it’s what you think you know that just isn’t so.” And for many, there’s a lot we think we know. Most people could probably recite a Miranda warning. How? Because we’ve seen it on television. As it relates to bail, TV has shown us bounty hunters tracking down absconders. Who hasn’t smiled while watching a TV perp’s crestfallen look when the judge triumphantly declares “Bail denied!”?Bail is supposed to be set with the public’s safety in mind, a notion repeated by the proponents of the current money bail system such as the California Bail Agents Association.

We must be careful not to confuse the wonders of Hollywood production with real life. Indeed, after a lifetime of watching NYPD Blue, CSI, and a litany of other shows known by initials, one may think the judge has some whiz kids of their own on staff. Why not, if law enforcement can pull a defendant’s entire “file” being in seconds, wouldn’t the judge be able to do so as well? The truth is, when setting bail the judge may have little more than his or her “gut,” and the charges in front of him, which for bail in California must be considered as true.

Moreover, with pre-set county-wide bail schedules , someone can post money bail and be released before even seeing a judge. High-risk individuals who may pose a significant danger to public safety can be quickly released, while low-risk non-violent ones remain in jail for longer periods. A better solution than money bail and the non-refundable 10% deposit is science. Using science, we can replace the money bail system, safely release more people (who still haven’t been convicted), keep our communities safe, and save money. This post touches on one such empirically-based method known as Risk Assessment (RA) tools. Continue reading “Risk Assessment Tools: How Science Is Making It Safe to Release”

When does the Judge come into the bail picture?

My earlier post discussed the training requirements for new judges in California. There is an extensive amount of material and training available to judges, however the issue seems to be the timing component. Judges can hear cases for as much as six months before having any formal training in their new role as a judge. Now, by looking at the role of judges in determining bail we can better understand why this timing component can be problematic for new judges.

What is the judge’s role in bail?

When a defendant is arrested and booked on charges they have the option to be released on their own-recognizance (OR) or pay a bail amount to be released from custody. The bail amount for defendants is set by a Judge or Commissioner. “If bail is not posted, the defendant will remain in-custody until s/he is taken to court for their arraignment within 72 business hours (excluding weekends and holidays).”(Pre-Trial Service ). The defendant is then taken to court for arraignment. At this point judges are given a report from pre-trial services regarding their recommendations regarding releasing the defendant or not. Pre-trial services may request that a defendant be released on O.R., Supervised O.R., or stay in custody. The final decision on whether to release a defendant on O.R., supervised O.R., or set a bail amount rests solely at the discretion of the Judge hearing the defendant’s case. “Penal Code Section 1270 (page 4) states that defendants charged with misdemeanors are entitled to an OR release unless the judge finds that to do so will endanger the public or not ensure the defendant’s appearance in court.” Further along in the post I will discuss what the pre-trial service report entails. Continue reading “When does the Judge come into the bail picture?”

Don’t Forget to Tip the Court

A criminal defendant goes through the justice system in stages, starting with the pretrial stage. This stage encompasses the moment a person has had a brush with the law, either through a citation or by being arrested, and extends to the point when a trial has begun. There are numerous opportunities during pretrial that a defendant can take advantage to be released from custody if she has the monetary means to do so. The most obvious is money bail, which has been criticized as a broken system due to many factors, including the large sum of money that the bail industry reportedly owes the state of California. However, my discussion will focus on other avenues of pretrial release and how money and wealth are still intertwined in those alternatives, starting with cite and release practices.

Under the California Penal Code section 853.6 police are required to grant pretrial release of persons arrested for misdemeanor crimes and, issue a citation, absent certain conditions (sections 1 and 2). The rationale behind this sort of release is twofold. First, misdemeanor arrestees pose a minimal threat to public safety, which is the most commonly articulated reason for detaining a person pretrial. Second, issuing a citation in misdemeanor cases is sufficient to ensure that the person will be present for future court proceedings. Further, pretrial incarceration has posed serious questions surrounding deprivation of due process, since some studies (pdf. page 62) have shown that defendants who are kept in custody during pretrial tend to have far worse outcomes than their free counterparts. So, if you are lucky enough to be cited and released, how does the size of your bank account affect the next phase of the pretrial stage? Continue reading “Don’t Forget to Tip the Court”

Privatization of Money Bail

What I hear about bail agents (often called bail bondsmen) is that they provide a valuable service and keep our communities safe at no cost to the taxpayer. According to the bail bond industry, they are dedicated to developing best practices that should lead to: maximizing the pretrial release of criminal defendants; minimizing days between arrest and pretrial release of criminal defendants; and protecting public safety. Facially, it seems to make sense – aren’t those goals precisely in line with the service provided? Confusingly, both commercial bail industry insiders and those in opposition to money bail (see page 29) point to the same data sources to support their competing (or opposing) arguments. In this post I outline the economic reasoning behind money bail and the role of a commercial bail agent in pretrial release. While proponents of the privatization of money bail suggest that there are gains to efficiency and service, a closer look reveals that legal constraints, profit motives, and shifting responsibility of financial risk away from defendants may actually detract from the goals of money bail as well as the purported goals of the commercial bail industry. This discussion does not address public policy or whether a privatized system for money bail is just. Instead, the focus is on economic arguments that support and detract from the proposition that a for-profit bail system makes fiscal sense.

Because private industry emphasizes efficiency and customer satisfaction in order to improve its bottom line, some public needs such as public transit and communications infrastructure may benefit from privatization. The introduction of competition provides incentives for private businesses to provide better goods, better services, and lower prices. Adam Smith described this effect as an “invisible hand” that guides economic actors to, “without intending it, without knowing it, advance the interest of the society. . . .”

But while most people agree that some industries are well served by privatization, certain other sectors of the economy should not be left to private interests. This is because some public goods, such as the military, are potentially dangerous if left to private actors and other public needs may present a conflict of interest if a profit motive is introduced. Imagine if the fire department had to give priority to profit over saving lives and property. Or imagine that we were concerned only with efficiency and not equity—that would mean that mailing a letter to a rural area would be more expensive than mailing the same letter to an urban one.

Courts rely more and more on financial bail terms; 61% of pretrial releases in 2009 included money bail, up from 37% in 1990. Given this increase, it becomes more and more important to analyze whether privatization of money bail serves the goals of money bail to begin with or if this is one of those areas that should not be exposed to the potential inequities or perverse incentives of a profit driven industry.

To begin with, money bail, in general, is not always an option. Some defendants are deemed too great a flight risk due to the magnitude of the potential sentence, or too great a danger either because of the nature of the alleged crime(s) (e.g., article 1 section 12 of California’s Constitution) or simply because of the type of offense (see Cal. Pen. Code 853.6(a)(2)-(3)). If money bail is set, it is constitutionally protected from being “excessive,” which the United States Supreme Court has interpreted as any amount “higher than an amount reasonably calculated to fulfill the purpose of assuring the presence of the defendant [at trial].”

In the federal system, since the Bail Reform Act of 1984, the safety of individuals and the community are factors in determining bail eligibility (denying bail as “preventive detention”), but the money bail amount is addressed separately. In fact, the Bail Reform Act clarifies in section 3148(c)(2) that “[a] judicial officer may not impose a financial condition that results in the pretrial detention of the person.” (emphasis added). The General Accounting Office found that the introduction of preventive detention resulted in 49% of defendants remained in federal pretrial detention as ineligable for money bail (which leaves 51% detained because they “failed to pay the bail set by the court”).

In California, the magistrate setting money bail amounts must take into account public safety. This is probably because, unlike the federal system described above, California law does not allow preventive detention for public safety reasons. Some people have questioned the validity of the idea that money bail can or does promote public safety. Judge Curtis Karnow writes that “there is no relationship between the dollar amount of bail and any in terrorem inhibiting effect that would deter future criminal conduct by the defendant.” Rather, other bail conditions can address public safety, such as supervision, GPS monitoring, mandatory drug tests, enrollment in a rehabilitation program, and the like. For this, and future, posts I agree with Judge Karnow’s analysis and address the economics of money bail by assuming that the purpose of money bail is purely to address the potential failure to appear of a defendant.

Because public safety is not a factor in money bail (at least in the federal system, and in general by the assumption above), commercial bail agents have at most a very limited role to play in public safety.   The service provided by the bail industry is a safeguard against failure to appear, the very thing that money bail is supposed to provide without a private industry. This is because there are different ways in which money bail can be arranged. For example, collateral, usually in the form of cash, can be given to the court and returned when the defendant appears at all court dates. More commonly, a private bail agent will put up a promissory note to the court in exchange for a 10% fee from the defendant and, in theory, if the defendant fails to appear the agent is responsible for the money bail amount. I will focus on this second form of money bail, called commercial surety bail.

Looking at the function of bail, it is clear that the bail industry does not have much to add. Our system decides on a dollar value that a defendant must pay if they fail to appear – reasoning that this financial risk will ensure their appearance. Then, instead of having the defendant actually take on that financial risk, we have them pay a nonrefundable fee to a commercial bail agent. The defendant is now out usually 10% of their bail amount, and now their risk is to the bail agent, usually in the form of collateral for the full 100%. Keep in mind that the 10% is just the bail agent’s fee, in the event of a failure to appear the bail agent can collect the full 100% from the defendant either alone or in combination with any co-signors. At the same time, the bail agent has assumed the financial risk due to the court, but is both covered by the defendant (and co-signors, as mentioned) and also by their surety provider (an insurance company that, usually in exchange for a percentage of the bail agent’s fee, indemnifies the bond). It is worth noting that a bail agent is usually licensed and defined by law as an agent for a surety provider.

In short, it appears that not only do commercial bail agents fail to provide the safety that their industry claims, but by absorbing the financial risk of the released defendant it is plausible that an agent might actually negatively effect the behavior of a released defendant. In subsequent posts I will address commonly cited privatization benefits, and analyze whether these are true for commercial bail bonds. These reasons include, among others, saving taxpayers’ money, increasing flexibility of service, improving quality of service, increasing efficiency and innovation, allowing policymakers to focus on policy instead of procedure, streamlining and downsizing government, and, of course, the appearance rate of money bail defendants in court.

Jail Classification and How it Relates to Bail

Statistics show that the majority of county jail inmates are individuals who are awaiting trial. Understanding how people are sorted, managed and classified within the jail system is an important step in determining why this is so. Furthermore, important bail decisions and determination are often made at the time of booking and classification. An explanation of the process seems a necessary starting point to further exploration into these subjects.

So imagine you have just been arrested by the San Jose police for some crime. For the sake of this hypothetical, let’s say you stole a garden gnome worth $145 from your old English teacher’s yard. When the police stop you, they catch you red-handed with the gnome. You are handcuffed and put into a police car, and you’re driven to the Main Jail where you go down a sinister-looking ramp to what is known as Lower Booking.

Continue reading “Jail Classification and How it Relates to Bail”