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”

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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”

America: The Land of The Free or The Land of Buying Your Freedom?

The criminal justice system in America is broken and has become a vehicle for collecting money from its passengers. Imagine getting arrested and brought into your local jail. What is the first thing that comes to your mind? Mine would be “what do I have to do to get out of here?” Well, the answer to that question is simpler than you probably would have imagined: money.

Most people only associate money bail with the adverse effects that wealth can play when determining whether someone has the ability to stay out of custody. Money bail is only part of the issue, however. Wealth is a catalyst for many injustices across the nation including the criminal justice system. Impoverished criminal defendants are not afforded the same opportunities as their wealthy counterparts merely because they do not have the monetary means. A poor criminal defendant will face many disadvantages throughout the criminal justice system for the sole reason of being poor. Over the next few posts I will discuss some of these disadvantages.

There are a few different ways to be released from custody, depending on what stage of the criminal process you are in: pre-trial, post-conviction, and post-sentence.

In the pre-trial stage, which extends from the moment you have been cited or arrested and booked, through bail hearings and arraignments, to the moment a criminal trial has begun, you are eligible to be released in three ways. The first and most well-known is money bail, the process where you pay a fee in order to be released. The second is release on your own recognizance, without supervision (O.R.) which involves a promise to come back to court and agreement to other various conditions (this includes cite and release). The third is release on your own recognizance with supervision (S.O.R.), where you agree to those same conditions (and more likely others) but the main difference is that those who are released on S.O.R. must check in with pretrial services for drug tests, alcohol tests, and the like.

In the post-trial or post-conviction stage of the criminal process, you may have the opportunity to be released from custody or avoid it all together. This takes form in some of the following ways: you can be put on court probation, which is similar to O.R. in that you agree to abide to terms and conditions, but you do so for a set amount of time; you can also be put on supervised court probation, which is essentially probation with the caveat of reporting to a probation officer every so often (think S.O.R. at a different stage of the process); you can be eligible for various alternative sentencing programs which include drug and alcohol treatment facilities, halfway houses, and city or county work programs where you work off your sentence; or you can pay a fine and be released. Should you be ineligible for any and all of these alternatives, you’ll be looking at life from a new perspective: behind bars.

If you do end up in custody, upon your release you may have to serve time on PRCS, which is similar to S.O.R. and supervised probation, but given a different name because of the point in the process in which it occurs.

So what do all of these things have in common? Money. Aside from the obvious ‘money bail’, each of these avenues in the criminal justice system costs money. For example, pre-sentence reports cost money: without them, you can’t get probation. Drug tests cost money: without them, you can’t get alternative sentencing. Classes cost money: without them, you might be unable to fulfill your terms of release. That doesn’t even mention the costs of renting electronic bracelets for home detention. These various costs all fall under the term “Legal Financial Obligations” or LFOs, a term coined by Wayne A. Logan and Ronald F. Wright in their article Mercenary Criminal Justice. If you consider all the different ways a criminal defendant can be charged monetarily, it’s difficult not to wonder about the disparate impact these LFOs have on impoverished and indigent defendants.

Well, so what, right? You do the crime, you do the time, or in this case, you do the crime, you pay the fine. The problem is that this system of ‘justice’ has created a means of punishing the poor much more harshly than the middle and upper classes.

Over the next few posts, I will be discussing specifically the different fines and fees that are imposed on defendants at different stages of the criminal justice process in California and what some of the implications are from those fines and fees. I will begin by discussing the pre-trial stage and how money is the primary proxy for being released from custody. Money bail is only the tip of the iceberg when it comes to wealth being a factor for who stays in and who gets out. If we are to really look at the ways in which poor people are affected, we must extend our investigation to LFOs.

Bail: What are we even talking about?

While listening to a the radio a few weeks ago, I came across a very interesting story that touched on the United States bail system and the role bail bond agencies play within this system. The radio segment told the story of an individual who couldn’t afford to pay the amount of money set by the judge for her boyfriend’s release and thus required the service of a bail bond agent in order to be released from custody.

Many will go through life without ever having to worry about the term “bail” and its definition. However, given the fact that over 12,000,000 people are arrested in the U.S. every year, it’s probably not a bad idea to have a basic understanding of what “bail” actually means. In this post, I will provide readers with a thorough understanding of the many terms that make up the bail system. I will also try to clarify some of the misleading information that’s available.

It is common to see a prosecutor quoted in a news article demanding that a judge set a high money bail amount in order to ensure that the dangerous defendant remains in jail. The news articles will cite to the hundreds of thousands of dollars and sometimes even millions that the defendant will be required to “post” in order to be released from custody while he or she awaits trial.

On the one hand, this type of news coverage provides the general public with an important association: bail and the criminal justice system. On the other hand, it also provides a flawed assumption: that bail is what defendants must pay in order to be released from custody when they are arrested. Private bail bond agencies similarly attempt to confine the term “bail” within these limited boundaries by specifically defining bail as the amount of money set by the judge.

This notion of what bail means is not necessarily wrong. However, it is misleading and limited for three reasons: it assumes that bail must always require a money amount, it also assumes that a dangerous defendant will not be released unless they pay the amount set by the judge, and it ignores the fact that a defendant who hasn’t been convicted is supposed to be deemed innocent until proven guilty. This post will clarify why bail is not limited to a money amount and why sometimes defendants (even those deemed very dangerous) are released even when they cannot pay the money bail set by the judge. This post will also question how the definition of bail has been construed so as to ignore the important reasons bail exists in the first place.

So what does “bail” actually mean?
The bail system is a way for the accused to be released from custody while they await trial. Hence, bail is something the defendant gives the court in order to be released from custody. The term “bail” can include a sum of money that must be paid immediately, but it can also include a bond (promise). This promise can be required from the defendant if the court believes they are not a threat to public safety or it can also be required from a bail bond agency. This brings me to the service that’s provided by a bail agent: in exchange for a fee running anywhere from $200-$10,000, a bail agent provides the court with a promise that the defendant will appear in court. In other words, the defendant pays the bail bond agency a sum of money and the bail bond agency promises the court that the defendant will show up to their court date. In this instance, if the defendant fails to appear, the bail bond agency is supposed to be the responsible party.

Before I begin to illustrate what a bail bond is, I would like to clarify two things. First, bail can include the amount of money set by a judge. For example, where bail is set at $100,000.00, if the defendant is able to pay that amount, he will be released from custody. The amount he paid will be returned to him so long as he shows up to his scheduled court date. Second, bail is used for specific and necessary purposes such as ensuring the presence of the defendant at trial and for public safety. Bail is not a means to keep a defendant in custody.

So, what happens when the defendant doesn’t have $100,000.00 sitting in the bank? Or, how about those defendants (and yes, they do exist) who are not likely to skip a court date and who are not a threat to public safety? This is where the term “bail bond” comes into play, or where I argue that it should come into play. A bond is a formal written agreement in which a person undertakes an obligation(s). If the person fails to perform that obligation, they are required to pay a certain amount of money.

In the context of the criminal justice system, a bail bond can include the court merely asking the defendant to sign a promise agreement where he agrees to appear in court. The court can then set an amount of money that the defendant will be required to pay should he fail to show up to court. The fundamental obligation here is ensuring that the defendant will appear in court when he is scheduled to be there as his failure to do so is what triggers the obligation to pay. By this logic, it would make sense that defendants are afraid of having to pay this large sum of money and will therefore appear in court in order to avoid it (not to mention the fact that failure to appear is a crime in and of itself). As mentioned above, if the defendant has paid money to the court, in doing so he also agrees that he will return to court for his scheduled court date. Those who have already paid are ensured to appear in court because they risk having to forfeit that money. However, if the defendant is very wealthy, perhaps there is no amount that can ensure they will appear in court.

How does the idea of public safety fit into all of this? If the defendant is so dangerous that he poses a significant danger to society, how does a certain dollar amount ensure that the defendant, when released, will not go out and well…be dangerous? The fact is no money amount can ensure that a dangerous defendant will not be dangerous. Therefore, the same logic that allows us to conclude that a money amount may ensure a defendant’s appearance in court cannot possibly allow us to conclude that a certain amount of money can ensure public safety. The answer to these questions is far from simple. However, a bail system that prides itself in making public safety the number one priority must include other means by which to achieve this goal–means other than a set money amount. My next posts will go deeper into the definition of what a bail bond is, the role that bail bond agencies play in this system, and the ways in which this system has failed to ensure public safety.

What it takes: An innovative risk-assessment tool in Santa Cruz County

Individuals accused of crimes will unsurprisingly wonder how it is that judges determine whether or not they should be granted bail and at what amount. After all, they haven’t been proven guilty beyond a reasonable doubt, and it is fair to assume that at this stage of the proceeding there is very limited information about them: their financial capacity, their community ties, or their housing and work situations. Judges are left with a difficult task in determining what the likelihood is that an individual who gets released will pose a public safety risk or fail to appear to his or her court date. Without more information, judges must either make these critical decisions in a subjective manner, based on experience and “gut feeling,” or strictly follow a set bail schedule without considering the defendant’s circumstances. Subsequently, many individuals who have a low flight and public safety risk may be detained pretrial on purely financial grounds, while high risk individuals who can afford the bail amount are released (pdf, go to page 5).

The consequences of the aforementioned approach have been dire both for society and those involved in the criminal justice system. At any moment, over 60% of the U.S. jail population is composed of pretrial detainees, including both low-risk and high-risk persons, and the estimated cost to incarcerate these individuals is $9 billion a year (pdf, go to page 5). In California jails, the average pretrial population is also about 60% of the total jail population (pdf, go to page 2). Moreover, research shows that detention of low-risk individuals makes them worse: when low-risk individuals are detained pretrial they are more likely to commit new crimes once they are released, receive longer sentences and more likely to miss their court dates. For individuals the repercussions of being detained pretrial, especially when they are low-risk, are grave since it can lead to falling behind on bill payments, missing school, losing their homes, losing their jobs, and becoming disconnected from their families and communities (pdf, go to page 15).

As a result, many at the forefront of bail reform are seeking new non-financial options to bail, and some are pushing towards objective evidence-based and cost-effective practices to help judges decide which individuals should be detained, supervised or released. Such practices include using validated risk assessment instruments that are supposed to accurately distinguish among high, moderate, and low-risk individuals to help judges make pretrial decisions based on the individual’s risk of reoffending or failing to appear to their court date. Currently, however, only about 10 percent of courts nationally use evidence-based risk-assessment instruments.

Among the places in California using these instruments is the Probation Department of Santa Cruz County through its Pretrial Services Unit. The Unit previously used the Virginia Pretrial Release Risk Assessment Instrument (VPRAI). A study comparing best practices in California states that the VPRAI examined a “defendant’s status at the time of the arrest as it relates to the current charges, pending charges, criminal history, residence, employment, primary caregiver and history of drug abuse.” Santa Cruz County, however, continues to reform its practices and has implemented a new risk assessment tool that is drawing attention nationwide. Counties, on the verge of applying or switching their risk assessment tools are interested in this tool’s success rates, operational efficiencies and implementation challenges.

The Probation Department in Santa Cruz County began the piloting of the Laura and John Arnold Foundation’s [LJAF] Public Safety Assessment-Court (PSA) on July 1, 2014. Unlike other risk assessment tools, the LJAF states that PSA only includes factors that are related “to a defendant’s criminal history and current charge [not] factors that could be discriminatory such as race, gender, level of education, socioeconomic status, and neighborhood.” According to LJAF’s research, the tool is just as predictive of risk without the controversial variables and is also time-efficient since the tool can be carried out without interviewing the accused.

About a year after implementing the PSA Court, the Santa Cruz Probation Department reported that the data was “still insufficient to complete a preliminary validation study.” Furthermore, it is difficult to analyze if it has helped in reducing pretrial detention population rates with the enactment of Prop 47 in October 2014 (Perez, 2016). While obtaining results from Santa Cruz County is difficult due to proprietary circumstances and concurrent legislation, there is valuable information for those interested in implementing the PSA Court in their counties.

The non-interview nature of the instrument has allowed Santa Cruz to increase by almost five times the number of pretrial assessments they conduct monthly (pdf, go to page 3). The length of time it takes to complete an individual PSA Court depends on the type of the case; it can range from five minutes with someone who has minimal history to twenty minutes for others who have more complicated cases (Perez, 2016). However, to minimize the potential for any errors, the pretrial services team has been working to reduce the rate in which an individualized PSA Court is completed (Perez, 2016).

According to Pretrial Supervisor Ms. Linda Perez, one of the most challenging components in Santa Cruz County was and continues to be getting others, such as judges, to accept this specific tool. Although receptive towards evidence-based practices, the challenge is because the prior tool the county relied on, the VPRAI (Virginia Pretrial Risk Assessment Instrument), “included more written information in the form of a narrative regarding the dynamic factors in the defendant’s life through information obtained in an interview” (Perez, 2016). Judges are now getting a different framework for the recommendations that does not necessarily include narrative information obtained through interviews or the same kind of focus on the current charge. The pretrial services team is finding ways to improve acceptance by presenting concise information about how the PSA Court operates to all involved in the process (Perez, 2016). In rare circumstances, “this obstacle has also been partially alleviated by the ability to include pertinent information at the bottom of the reports regarding mental health concerns, gang involvement, and other pressing issues” (Perez, 2016).

Additional challenges included modifying their electronic pretrial system to incorporate all the risk factors and inputting the outcomes of each assessment required by the Laura and John Arnold Foundation (Perez, 2016). According to Ms. Perez changing the system was a lengthy process that took about four to five months. Equally, inputting outcomes and keeping data for each assessment was more time-consuming for staff, since they previously used to keep data only on the defendants released under their supervision.

In terms of expenses, as part of the pilot process Santa Cruz County received substantial technical assistance, training and support, data analysis and oversight as well as the product itself at no cost (Perez, 2016). Although the tool itself will eventually be provided to agencies free of charge, if an agency is not part of the pilot program, getting the appropriate training and changing electronic data systems could be costly (Perez, 2016). There are no cost savings specifically through the use of the PSA Court (Perez, 2016).

The LJAF is not assisting the county anymore; however, they will get assistance to complete the full validation study. Santa Cruz County’s goal is a “75% concurrence rate; the ratio of released and detained defendants to the pretrial agency’s release and detention recommendations” (Perez, 2016). Santa Cruz County is hoping to complete a full validation study within a few months.

A common expression is that the justice system cannot keep up with technological and scientific advancements. This post is meant to both start the discussion around an innovative risk assessment tool and help others begin strategizing around potential challenges. While we wait for Santa Cruz County’s results, my next post will explore the possibility of using scientific data-driven risk assessment tools in the realm of domestic violence cases.

Implementing Risk Assessment Tools: Benefits and challenges in Santa Clara County and Santa Cruz County

After taking a training on unconscious bias and its effect on decision-making, I became intrigued about validated risk assessment tools meant to offset this effect in pre-trial determinations. These tools have been adopted nationally throughout different counties. I will be comparing and contrasting Pre-Trial Services in Santa Clara County to the Public Safety Assessment Pilot program in Santa Cruz County and their use of validated risk assessment instruments. I then want to determine how the instruments are implemented and analyze to what degree judges deviate from the recommendations of these agencies and why. I want to observe whether the prosecutor influences the judge’s decision to deny or set bail at a certain amount and whether public defenders raise Eighth Amendment “excessive bail” challenges. In the midst of this process, I want to evaluate whether the financial circumstances of the accused are ever considered—in theory or in practice.

My name is Carlos Barba and I am a second year law student at Santa Clara University School of Law. I was born and raised in Watsonville, California, a city in the south part of Santa Cruz County, predominantly comprised of low-income immigrants. I’ve witnessed how our current bail system disproportionately affects low-income individuals and their families, which is why I am interested in criminal justice reform. My goal this semester is to provide new information about common bail practices and assess the effectiveness of these practices in order to influence policy.